0'^ ^ <^ ^ •H ^ >*-" ^ ^ 2) .<• 1: k^ } • vt ^^ ^v 7 A TREATISE ON THE LAW RELATING TO THE POWERS, DUTIES, RIGHTS, AND LIABILITIES OF EXECUTORS, ADMINISTRATORS AND GUARDIANS A PRACTICAL GUIDE FOR THE EXECUTION OF THEIR TRUSTS; DEFINING, ALSO, THE JXmiSDICTION AND POWERS AND DUTIES OF THE PROBATE COURTS, AND GIVING THE LAW AND PRACTICE IN SAID COURTS, WITH APPROPRIATE FORMS AND RECORD ENTRIES, ESPECIALLY ADAPTED TO THE LAWS OF MISSOURI, BUT USE- FUL IN OTHER STATES BY HENRY S.IKELLEY AUTHOR OF "kELLEY'S CRIMINAL LAW AND PRACTICE' AND "kELLEY'S JUSTICE TREATISE" FOURTH EDITION BY WM. P. BORLAND AND JOHN B. GAGE OF THE KANSAS CITY BAR KANSAS CITY. MO. VERNON LAW BOOK COMPANY 1913 Entered according to Act of Congress, in the year 1871 By W. J. GILBERT, FOR HENRY S. KELLEY In the office of the Librarian of Congress at Washington SECOND EDITION Entered according to Act of Congress in the year Eighteen Hun- dred and Eighty-Pour By henry S. KELLEY In the office of the Librarian of Congress, at Washington, D. C. THIRD EDITION Entered according to the Act of Congress in the year Nineteen Hundred and Three By HENRY S. KELLEY In the office of the Librarian of Congress, at Washington, D. C. FOURTH EDITION Copyright 1913 BY VERNON LAW BOOK COMPANY (Kel.Mo.P.G.) ,J. .v-7/ \J PREFACE TO FOURTH EDITION It was not the intention of the editors in the preparation of this edition of Kellcy's Probate Guide to alter or change the general structure and manner of treatment to which Judge Kelley had conformed in previous editions. The revision it- self was demanded on account of the many changes, both stat- utory and by decision of appellate courts in the probate law and the administration thereof, which have occurred in the ten years that have elapsed since the edition as revised by the au- thor himself was published. Every section of the text has been carefully revised and rewritten wherever necessary to conform to the present day law. Numerous additional cases have been examined and cited to that portion of the text to which they apply. The revision has been made with reference to the 1909 Revised Statutes of Missouri to which the text is related by proper reference to the sections of the Statutes. It was always the intention of the author that this work- should be rather a practical guide in the everyday administra- tion of the probate law than a book of authoritative reference in litigated controversies which involve the construction of va- rious features of the subject to which it relates. The editors in this revision have had this purpose of the author in mind, and have attempted to conform thereto. They trust that those who may be called upon to use this treatise will find it of as- sistance, and that it will lessen the labor of the court, lawyer, or layman who may have occasion to consult it. William P. Borland. John B. Gage. Kansas Citt, Missottbi, January 1, 1913. (Ill) PREFACE TO THIRD EDITION Important changes having been made in the laws in relation to the administration and settlement of the estates of deceased persons, and matters of guardianship, and the like, and the ar- rangement of chapters and numbers of the sections of the gen- eral statutes having been changed in the revision of 1899, make it necessary to issue a new and third edition of this work; therefore, the author has revised and rewritten much of the former text and added a few new chapters and other matters which will make the book more convenient and useful for those concerned in the business to which it relates. It defines the jurisdiction and powers and duties of the Pro- bate Courts and of the judges and clerks thereof in vacation; and it gives the law and practice in said courts, with appropri- ate forms and record entries with reference to the statutes now in force and the decisions of the Supreme and Appellate Courts of the State of Missouri, to wit : 1. The execution, the probate, the revocation, and the con- struction of last wills and testaments. 2. The appointment, the powers, duties and liabilities of ex- ecutors and administrators in the settlement of estates of de- ceased persons, from the grant of letters to final settlement and discharge of the executor and administrator. 3. The property rights of the widow and children in both real and personal estate, as to dower, homestead and the dis- tribution of estates under the law of descents and distribution, with instructions and forms of procedure for setting off dower and homestead or ascertaining the present value thereof. 4. The rights, duties and liabilities of guardians and cura- tors of the persons and estates of minors. 5. The appointment of guardians for the care and manage- ment of the persons and estates of idiots, lunatics, persons of unsound mind and habitual drunkards. 6. The appointment of guardians for friendless children. 7. The adoption of children and the apprenticeship of mi- nors, together with all other matters pertaining to the above subjects. 8. The law in relation to the collateral inheritance tax. (iv) PREl'ACE TO SECOND EDITION V Our references to the Revised Statutes of 1899 are thus: R. S. 1899, Sec. . or R. S. Sec. ; and to the Supreme Court Reports, thus: 168 Mo." 95; and to the Missouri Ap- peals Reports, thus : 80 M. A. 21, or 80 A. 21. Believing that the convenience and usefulness of this book has been improved by this revision, it is respectfully submitted by the author. H. S. Kkli^EY. St. Joseph, Mo., April 1, 1903. PREFACE TO SECOND EDITION SiNCK the publication of the first edition of "Kelley's Probate Guide," many important chang-es have been made in the laws in relation to the administration and settlement of decedents' estates, and matters of guardianship, making a revision, and second edition of the book, necessary, if not indispensable, to its further usefulness. The probate laws of Kansas being sim- ilar to, and for the most part taken from, the probate laws of Missouri, so that both of these states have substantially the same system of administration laws, the author has prepared this edition with reference to the laws of both. Indeed, the book has been thoroughly revised, rewritten and enlarged, sev- eral new chapters being added, and the whole plan and scope of the work changed, so as to adapt it to both Missouri and Kansas. It defines the jurisdiction and powers and duties of the pro- bate courts and of the judges thereof in vacation; and it gives the law and practice in said courts, with appropriate forms and record entries with reference to the statutes now in force and the decisions of the Supreme Courts in relation to : 1. The execution, the probate, the revocation and the con- struction of last wills and testaments. 2. The powers and duties and liabilities of executors and ad- ministrators in the settlement of estates of deceased persons, from grant of letters to final settlement and discharge of the executor or administrator. 3. The property rights of the widow and children in both real and personal estate, as to dower, homestead and the dis- tribution of estates under the law of descents and distributions. Vi PREFACE TO FIRST EDITION 4. The rights, duties and liabilities of guardians and curators of the persons and estates of minors. 5. The appointment of guardians for the care and manage- ment of the persons and estates of idiots, lunatics, persons of unsound mind, and habitual drunkards. 6. The adoption of children and the apprenticeship of mi- nors, together with all other matters pertaining to the above- named subjects. The sections of the revised statutes of Missouri, in the re- vision of 1879, having been numbered successively throughout the whole revision, our references are to them, thus : R. S. 1879, § - — , or R. S. § . And the Compiled Laws of Kan- sas (Dassler's compilation) 1879, also having the sections num- bered consecutively throughout the whole volume, our refer- ences to them are thus, C. L. 1879, § , or C. L. § . Hoping that the profession and others into whose hands this volume may fall will overlook its imperfections and accord to it whatever of merit it deserves, it is respectfully submitted by the Author. Savannah, Mo., January, 1884. PREFACE TO FIRST EDITION In the course of each generation all the property of the coun- try passes through the process of administration, and as a con- sequence, almost every person is at some time in his life inter- ested, or concerned in some way, in the settlement of dece- dents' estates, or in the management of the interests of minor children. And not only are the rights of creditors, heirs, dev- isees, legatees and distributees, committed to the care of those concerned in the business of administration and guardianship, but, what is of still more importance, the titles to real estate sold by executors and administrators, or guardians and cura- tors, depend upon the accuracy with which they comply with the requirements of the statute authorizing such sales. Hither- to no work of this character, adapted especially to the laws of this state, has ever been published. To supply the omission, and place within the reach of every person, who may in any PREFACE TO FIRST EDITION Vll manner be concerned in the transaction of probate business, a safe and convenient guide, is the object of this vokime. In the preparation of the work nothinj^ further has been at- tempted than a compilation of the laws and general principles thereof, supplemented by practical suggestions, precedents and forms, rendering the powers and duties of executors and ad- ministrators, and guardians and curators, and the practice in the prol)ate courts of easy comprehension. It is hoped and believed by the author that the work will be found not only useful to those who have no professional educa- tion or experience, but will be a welcome assistant to those en- gaged in the practice of the profession, although it is not spe- cially designed for professional readers. It is impossible to dispense with the aid of attorneys in the administration of es- tates, for complications arise, and responsibilities are often involved which require professional advice and assistance. Therefore, the law encourages the employment, and provides for the compensation of lawyers in all proper cases in the course of administration ; and the profession is seldom better employed than in protecting estates from loss, contributing to the payment of creditors, and saving as much as possible for widows and children. Having stated the character and object of the work, and in- voking the charity of the profession for its imperfections, it is respectfully submitted to the public. Henry S. Keli^hy. Savannah, Mo., March, 1871. TABLE OF CONTENTS CHAPTER I OF THE rOWF.R AND CAl'ACITi' TO MAKK Wrf.LS Sec. Page 1. Origin of wills 1 2. Definitiou 2 3. Nature of n will 3 4. Codicils 3 5. Testamentary capacity — In j^eneral 4 6. I nf a ncy 4 7. Coverture 5 S. Alienage 6 9. Deaf and dumb 7 10. Mental incapacity 8 11. Idiocy 10 12. Lunacy 10 13. Senile dementia 11 14. Drunkenness 12 15. Duress 13 16. Fraud 13 17. Undue influence 14 18. Conviction for crime 15 19. Same 16 CHAPTER II OF THE FORM AND MANNER OF MAKINO WILLS 20. Essential ingredients IS 21. The will must be in writing 10 22. How to be worded 19 23. Same — Rule in Shelley's Case — What estate 20 24. By whom written — rresumptively void when 21 25. Must deiieud on event of death 22 26. How and where to be signed 22 27. Same 23 28. How attested 24 29. Competency of attesting witnessi-s 2.'i 30. Attestation— Clause 2(: 31. Care in drafting will 2(J Form of written will 27 Form of codicil 28 Form of nuncupative will 28 Kel.Mo.P.G. (ix) TABLE OF CONTENTS CHAPTER III DISINHERITING WIFE OR CHILD Sec. Page 32. Disinheriting wife or child 30 33. Same — Estate must be devised or bequeathed 31 34. Child not disinherited unless named or provided for 32 35. Same 32 36. Same— How named 33 37. Same 34 38. Effect of such omission on the will 3.1 39. Same — Rights of child omitted in the estate 35 40. Agreement to dispose of property by will 35 CHAPTER IV OF NUNCUPATIVE OR UNWRITTEN WILLS 41. Nuncupative will — When allowed 37 42. Same — In Missouri 38 43. Same — By mariner or soldier 38 44. Gift causa mortis and inter vivos 39 CHAPTER V OF THE REVOCATION OF WILLS 45. General methods of revoking 41 46. Revocation by a subsequent will 41 47. Same — Does not revive former will 42 48. Same — When not revoked 43 49. Same— Of lost will 43 50. By burning, canceling, tearing or obliterating 44 51. Same— The act and intention 45 52. Same — Of sound mind of testator 46 53. Same — Presumptions as to revocation 46 54. Same — How effected by destruction, etc 47 55. By marriage 47 56. By marriage and issue 47 57. Same — Implied by alienation of the estate 48 58. Same — Not effected by contract or incumbrance by testator 49 CHAPTER VI OF THE REPUBLICATION OF WILLS .59. Republication of a will 51 60. Same — By a codicil 51 61. Effect of publication 53 Sec, TABLE OF CONTKNTS XI CHAPTER VII OF THE PROBATE OF WILLS Page 62. Production of will for i»rol)ate ^ 63. Probated in what county— By court or clerk, etc 54 64. Same — I )eath of testator to be shown 55 65. Same — Will, how iiroved ^^ 66. Same— Form of will ''fl 67. Commission to take proof — When and fonn 57 68. Return to commission and examination 58 69. Witness dead or absent, etc 59 70. Proof to be reduced to writing 59 71. Hand-writing — How proved 59 72. Will admitted against the evidence of attesting witnesses. . 60 73. Proof of lost will ^0 74. Soundness of testator's mind to be proven 61 75. Order of probate and certificate 62 76. Codicil must be proven, etc 63 77. Proof of nuncupative will — Citation, etc 63 78. Judgment of probate— Effect— Forms 64 CHAPTER VIII RECORDING OF WILLS 79. Wills to be recorded — Effect thereof 68 80. Same — Wills conveying land 68 CHAPTER IX OF FOREIGN WILLS 81. What law governs — Domicile 70 82. Same — Law of domicile 71 83. Effect of judgment of probate in another state 71 CHAPTER X OF THE CONTESTING OF WILLS 84. Contest — Within what time — Limitation 72 85. Same— Matters of practice 73 86. The petition 1^ 87. Issues to be formed and submitted T.l 88. Open and close — Procedure 70 CHAPTER XI OF THE CONSTRUCTION OF WILLS 89. Authority of adjudged cases 78 90. General rules of construction 78 91. Words which pass a fee S3 Xii TABLE OF CONTEXTS Sec. Page 92. Estate for life or less 85 93. Personal effects — Residue — After-acquired estate 86 94. Description of devisee or legatee 87 95. Same — "Children," how construed 88 96. Same — Other relations how named, "Heirs," "Next of Kin," "Cousins," etc 89 97. Same — "Family," "Legal Representatives." etc 90 98. Ambiguity, uncertainty of description of legatee 91 99. Interlineations or erasures 92 100. Remainders — Lapsed legacies 92 101. Same — May lapse when 94 102. Contributions by devisees and legatees 96 103. Lineal and collateral warranties 96 CHAPTER XII OF TRUSTS AND TRUSTEES CREATED BY WILL 104. Trustees — Bequest for public charity 97 105. Words creating trusts 97 106. Trustees appointed — When 98 107. Express and resulting trusts 100 108. Same — By court of chancery 101 109. Duty of trustee— Degree of care required 101 CHAPTER XIII OF ELECTION BY WIDOW TO ACCEPT OR RENOUNCE THE WILL 110. Renunciation or acceptance of will by widow in Missouri.. 103 CHAPTER XIV OF PROBATE COURTS, THEIR JURISDICTION, POWERS AND INCIDENTAL MATTERS 111. Probate court — Its jurisdiction in Missouri 106 112. Jurisdiction defined 107 113. Courts of limited jurisdiction 107 114. Exclusive jurisdiction 10!> 115. No jurisdiction 110 116. In habeas corpus 112 117. Petition for writ of haljeas corpus 114 118. Qualifications of probate judge 115 119. Election or appointment of special judge of i)ro!)ate 116 120. Judge may practice law — When 116 121. Judge disqualified 117 122. Probate clerk — Appointment and duties 118 123. Incidental duties of the probate judge 118 124. Expenses of maintaining court 118 125. Salaries 119 TABLE OF CONTENTS XIU Sec. Page 126. Terras of court 119 127. Powers of probate court 120 128. Process — How issued aud directed 121 129. Docljet to be kept 121 loO. Penalty for refusal of judge, or clerk, to perform oflicial duties 122 131. Fees allowed probate court In Missouri 122 CHAPTER XV OF THE APPOINTMENT OF EXECUTORS AND AD:\IIXISTRA- TORS, THEIR BOND, REVOCATION OF LETTERS, ETC. 132. Executor 124 133. Executor de son tort 125 134. General administrators 126 135. Special administrators defined 127 136. Executors and administrators, same duties 128 137. Executors cannot act without letters 128 138. Wbat court may grant letters 129 139. In what county letters must be granted 129 140. To whom letters may not be granted 130 141. To whom letters may be granted 130 142. Same — Letters in case of general intestacy 131 143. Same — To husband or wife 132 144. Same — When wife has separate estate 133 145. Same — To distributees or next of kin 134 146. Citation to administer — Letters to another 135 147. No letters to be granted, when, etc 137 148. Proceedings to obtain letters 140 149. Same — By executor or administrator 141 150. Bond of executors and administrators 142 151. Same — Liability on, etc 143 152. Execution of bond — New bond, etc 144 153. Who shall not be taken as sureties 145 154. Approval or rejection of bond, etc 145 155. Bond excused by will — Joint bond, etc 145 156. Bond to be recorded 146 157. Validity and form of letters 146 158. Same — To be approved and recorded 148 159. Authority conferred by letters 150 160. Revocation of letters 151 161. Same — Statutory grounds therefor 1.52 162. Additional bond and revocation of letters 154 163. Effect of additional bond 1.56 164. Notice — When administrator has left the state 158 165. Resignation of executor or administrator 1.58 166. Proceedings on revocation of letters, resignation (ir death of administrator, etc 160 167. Same 161 168. Same — Former administrator required to settle, etc 162 169. Same — Notice and judgment 164 Xiv TABLE OF CONTENTS CHAPTER XVI OF THE RIGHTS OF EXECUTORS AND ADMINISTRATORS IN THE PROPERTY OF DECEDENTS Sec. Page 170. Assets, what are 167 171. When the estate vests in the personal representative 168 172. The nature of the Interest of the representative 170 173. Same — When it becomes his own property 171 174. Same — As to realty 172 175. His right to chattels real 174 176. His right to chattels personal — Division of chattels 175 177. Same — Chattels animate 175 178. Same — As to vegetables, trees 176 179. Same — Growing crops — Emblements 176 180. Same — As to fruits, etc 177 181. Chattels inanimate 178 182. Same — Choses in action 178 183. Same— Fixtures 180 184. Same — As to tenants, etc 181 185. Same — As between tenant and landlord 183 186. Same — Fixtures as trade or agriculture. . 184 187. Removal of fixtures 184 188. As to leases 185 189. As to rents 187 190. As to stocks 188 191. As to annuities 189 192. As to property held in trust 189 193. As to patents 190 194. As to copyright 191 195. As to policies of insurance 192 196. As to apprentices 193 197. As to partnership effects 194 198. As to goods mortgaged 194 199. As to separate property of wife 196 200. Same— By statute 197 201. Same — When the wife survives 199 202. Same — When the husband survives 200 203. Donatio mortis causa 201 CHAPTER XVn OF THE INVENTORY AND APPRAISEMENT 204. The inventory — When and how made 204 205. Same — Certificate of witnesses 207 206. An inventory is a list, etc 208 207. Same — To include debts and other claims 209 208. Same — Property allowed the widow 210 TABLE. OF CONTKNTS XV Sec. Page L'OO. The appraisement — When and how niatlo 210 210. Additional inventory and appraisement 212 211. Allowance to widow 21.3 212. Same — Supplying deficiency 215 213. Allowance to minor children and widower 21.") 214. Articles taken by widow to be listed 21G CHAPTER XVIII RECOVERY OF CONCEALED, EMBEZZLED. OR WRONGFI'LLY WITHHELD ASSETS 215. Recovery of assets wrongfully withheld 218 216. Nature of proceeding 220 217. Forms for use in pleading 221 218. Judgment and effect thereof 222 CHAPTER XIX PUBLICATION OF NOTICES REQUIRED DURING ADMINISTRATION 219. Notice of grant of letters 224 220. Same — By administrator de bonis non 225 221. Notice where intestate left no known heirs 225 222. Notice of final settlement 226 223. Proof of publication, how made and preserved 226 224. Effect of publication of notice on claims not presented..., 227 CHAPTER XX OF THE SALE OF PERSONAL ESTATE BY EXECUTOR OR ADMINISTRATOR 225. When personal property may be sold — Terms of sale 2.30 226. Same — When there are no known heirs , 231 227. Notice of sale 231 228. Sale— How conducted 232 229. Same — Postponement of sale 233 230. Sale bill— List of articles sold 233 231. Same— Return of sale bill 234 232. Personalty may be sold at private sale, when 235 233. Sale of property bound by the lien of an execution, etc 236 234. Same — Application of proceeds of sale 236 235. Same — When lien of execution attaches, etc 237 236. Personal property may be reserved from sale 238 XTl TABLE OF CONTEXTS CHAPTER XXI ACTIONS BY EXECUTORS AND ADMINISTRATORS Sec. Page 237. Duty of executor or administrator to collect debts, etc 239 238. Collection, compromise and disposal of debts, etc 240 239. Suit by, etc., in what court 241 240. Where the action accrues to deceased before his death.... 241 241. Suit by foreign administrator 242 242. Where the action accrues after death of deceased 244 243. Allegations of representative capacity in pleading 245 244. Actions to collect rents 247 245. Continuance of action commenced by deceased 247 246. Actions by personal representatives for wrongful death of deceased 249 247. Securitj' for costs not required 254 248. Set-off, when allowed 254 249. Same — A few illustrations 255 250. Suit before justice — Judgment for excess 256 251. When the executor or administrator owes the deceased... 256 252. When liable for interest, etc 256 253. Administrator may loan money of the estate 2.57 2.54. Court may make all necessary order, etc 257 255. Competency of witnesses in actions by or against execu- tors, etc 257 CHAPTER XXII ALLOWANCE OF DEMANDS AGAINST ESTATES 256. Speedy settlement of estate 260 2.57. Liability of executors, etc., for the acts of the deceased... 261 2.58. Joint contracts and promises 262 2.59. Claim of child or near relative for services, etc 262 260. Classification of demands against the estate 265 261. Limitation of demands, etc 268 262. Demands, how exhibited 270 263. List of demands to be kept — Object of classilicatiun, etc... 272 264. Demands, how established — By judgment 273 265. Judgments rendered in lifetime of deceased 273 266. Jurisdiction, in what court, as to demands 274 267. Presenting demand to probate court 275 268. Same — Waiver of notice by administrator, etc 277 269. Same — Affidavit to demand 277 270. Same— By agent 278 271. When the claim is before the court, etc 279 272. Payment of demands without allowance, when 2.S0 273. Set-off and other defense to demand 280 274. Trial by court or jury 281 275. Same — When claim is founded on note, etc 282 ^ TABLE OF CONTKNTS xvii Sec. Page liTG. When demand or set-off is not duo 283 277. Domaud of executor or administrator 284 278. Judgment, how entered, form thereof 285 279. Same — Costs, how adjndj,'ed 285 280. Same — Different judgments, their effect 286 281. Abstract of demands allowed to be kept by clerk or judge 288 282. Effect of classitication of demand 289 283. Allowance of demand when executor Is temporarily absent 289 284. Judtjmeut of allowance, etc., may be set aside, how and when 290 CHAPTER XXIII DUTIES OF EXECUTORS AND ADMINISTRATORS RESPECT- ING THE SALE AND CONVEYANCE OP REAL ESTATE 285. Sale of land under power contained in a will 292 286. Same — By whom the power may be executed 294 287. Same — Form of deed -'!»."i 288. When the sale is for a specific purpose 2'.i(j 289. Executory contract by deceased for purchase of land 2!t7 290. Same — Petition — Order of sale 2!t7 291. Same — Report and confirmation of sale -''.i;> 292. Contract for sale of land by deceased — Enforced -ino 293. Same — Order of court and deed ::oi 294. Same — Case may be transferred to circuit court .■!<»2 295. Same — Proceeding by executor, etc ."ioi 296. Specific performance of contract enforced oU4 297. Contract may be cancelled, etc oOo CHAPTER XXIV OF THE SALE OF REAL ESTATE FOR PAYMENT OF DEBTS AND LEGACIES 298. Jurisdiction of probate court 30G 299. Disposition of incumbered real estate 307 300. What real estate may be sold to pay debts 310 301. The petition therefor and exhibits ol2 302. Same 312 303. Notice of the petition— Order of sale 'Mi 304. Hearing of the petition — Order of sale 310 305. Same — Necessity of an order of sale 318 306. Appraisement of real estate 319 307." Notice of sale 320 308. Sale, how and where made 321 309. Report of sale 32;; 310. Approval of report and deed 324 311. Deed made by succeeding administrator, etc 32S 312. Effect of deed 328 313. Court may order sale of land without petition 329 Kel.Mo.P.(}.— b XVlll TABLE OP CONTENTS Sec. Page 314. Lands may be divided into town lots, etc 330 315. Personal estate may be reserved and real estate sold 330 316. Wlien the real estate is bound by the lien of a judgment or attachment 332 317. Same — When bound by several liens, etc 332 31S. Sale of leasehold interests 334 CHAPTER XXV OF THE PAYMENT OF DIvBTS AND LEGACIES 319. Payment of debts, in what order 335 320. Same — Receipts should be taken, etc 336 321. Payment of legacies — Different kinds of legacies 336 322. When a legacy will lapse 337 323. Assent of executor to legacy 338 324. Cumulative legacies 339 325. In lieu of dower 339 326. Legacies to creditors in satisfaction of debts 340 327. Legacy by creditor to his debtor 341 328. Interest on legacies 341 329. Legatee entitled to increase, etc 342 330. Time of payment of legacy 342 331. Debts should be paid before legacies 343 332. Refunding bond and receipts, etc 343 333. Proceeding against executor, etc., for failing to pay legacy 344 CHAPTER XXVI OF THE DISTRIBUTION OF ESTATES, AND INCIDENTAL MATTERS 334. When the widow takes the whole estate 345 335. Who are entitled to distribution 346 336. Same— Share of widow 347 337. Same— Children of half blood— Collateral kindred 348 338. Same— When they take per capita or per stirpes 350 339. Same — Advancement — How considered 350 340. Distribution of estate not bequeathed 352 341. Bastards— Illegitimate children inherit 352 342. Colored persons, entitled to distribution 353 343. Distribution of property in kind, or the proceeds thereof. . 353 344. Same — Appointment of commissioners 354 345. Notice of petition for partition 354 346. Rights of parties to be determined — Order of partition 355 347. Same — By whom sold 356 348. Forms used in making partition 356 349. When debts have been paid out of real estate 357 350. Disputed questions — How settled 358 351. Appointment and duties of guardian ad litem for minors. . 358 TABLE OF CONTEXTS XIX Sec. Page .')52. RefiindiiiK by legatee or distributee 359 353. Proceedings against distributee or legatee :>(J0 354. Distribution or allowance for support of children 3(Jl 355. Widow's share of rents 362 356. DisiK)sition of legacy or distributive share when not called for 362 357. Share called for within twenty-one years .''>(>■{ 358. Estate escheats 36:! 359. Administration of estate where absent seven years 364 CHAPTER XXVII ESTATES OF NON-RESIDENTS, HOW ADMINISTERED AND DISTRIBUTED .'^.60. What law governs in the tx'ansfer of property 365 361. Rights of foi-eign administrator .366 362. Law of doniicil governs the distrilnition of personal estate 368 363. Same — As to both real and personal estate after payment of local debts 369 364. When the estate is insolvent 370 365. Same — All creditors to share equally, etc 371 CHAPTER XXVIII OF THE SETTLEMENT OF THE ACCOUNTS OF EXECUTORS AND ADMINISTRATORS, ANNUAL AND FINAL SETTLEMENTS 366. Settlement, when to be made 372 367. Docket to be kept and published 373 368. Docket to be called for settlement — Citation to be issued.. 373 369. Penalty for failing to make settlement 374 370. What to be charged in semi-annual settlement 375 371. Same — With interest received 376 .372. What to be credited in such settlement 377 373. Receipts, vouchers, proof of payment of debts 37s 374. Form of semi-annual settlement 379 375. Nature and effects of such settlement 3S1 376. Duty of court to order payment of debts 3S1 377. Execution to be issued '.',s:', 378. Scire facias or suit on bond ;>8.) 379. Final settlement to be made — Notice thereof, how given... 385 380. Form of final settlement 387 381. Uncollected accounts, etc., to be delivered to creditors or distributees ;'.89 382. Discharge of executor or administrator ."tJiO 383. Opening final settlement .■!91 384. Final discharge of administrator 392 385. Proceedings by creditor after final settlement 393 XX TABLE OF CONTENTS CHAPTER XXIX OF PARTNERSHIP ESTATES Sec. Page 386. Rights of parties, at common law, on death of a partner. . 395 387. When the partnership property is insufficient to pay the debts 396 388. Individual estate liable for firm debts 397 389. Administration by surviving partner 397 .390. The bond required of surviving partner 398 391. Duties and liabilities — Inventory 399 .392. Allowance and payment of demands 400 .393. Classification of demands 401 .394. Settlements by surviving partner 402 395. Administration of partnership effects by exeeutur or ad- ministrator of deceased partner 402 396. Inventory — When and how made 403 397. Same — Disposal of assets 403 398. Demands to be exhibited, allowed and classed 404 399. Proceedings same as in settlement of estates 404 400. Bond of administrator taking charge of partnership estate 404 40L Party administering may take an appeal 405 CHAPTER XXX OF PUBLIC ADMINISTRATORS 402. Election, oath, bond, term of office and removal 406 403. What estates and when he may administer 407 404. To give notice of having taken charge of estate 409 405. Suit for collection of debts 410 406. General powers, duties and liabilities same as other admin- istrators 411 407. May close administration of unsettled estate after term of office 411 CHAPTER XXXI OF PROCEEDINGS AND ACTIONS AGAINST EXECUTORS AND ADMINISTRATORS AND THEIR SURETIES, ETC. 408. Executors and administrators, when jointly or severally liable 414 409. Degree of care required by them 415 410. When personally liable on promise to pay debts, etc 416 411. Proceedings against administrators and sureties 416 412. Notice — How given of the proceeding 418 413. Trial and judgment 418 414. Suit on the bond — Statutory provisions 419 41.5. Decisions in relation to actions on bcmds 420 416. Same 422 TABLB OF CONTENTS X^l CHAPTER XXXII OF APPEALS _ Sec. rage 417. When appeals are allowed 425 418. Within what time, and how tal0 539. Enticing away and harboring 550 540. Removal from the state not allowed 551 o^l. The law applies to whom 551 CHAPTER XLVIII COLLATERAL INHERITANCE TAX .542. Estates subject to inheritance tax 5.52 543. Tax, when due and payable 555 544. By whom collected and how disposed of 555 545. Tax on remainders, reversions, etc 5.56 546. Adniiuistrators must retain tax, when 557 547. Proportion of tax repaid to legatee 558 548. Duty of executor when real estate is subject to tax 558 549. Probate court to appoint appraiser 558 550. Report of appraiser 559 551. Appeal and certiorari 559 552. State auditor may have reappraisal 560 553. Appraiser guilty of misdemeanor 561 554. Jurisdiction of probate court — Appeal 561 555. State auditor to furnish books and forms 561 556. Probate judge to make report 562 557. Proceedings to collect tax 562 558. Collector's receipt, when given 563 559. Fees of collector 563 560. Forms o63 TABLE OF CASES CITED (Page 579) INDEX (Page 605) t MISSOURI PROBATE GUIDE FOURTH EDITION CHAPTER I OF THE POWEK AND CAPACITY TO MAKE WILLS § 1. Origin of wills. 2. Definition. 3. Nature of a will. 4. Codicils. 5. Testamentary capacity — In general. 6. Infancy. 7. Coverture. S. Alieuat^e. 9. Deaf and dumb. 10. Mental incapacity. 11. Idiocy. 12. Lunacy. 13. Senile dementia. 14. Drunkenness. 15. Duress. 16. Fraud. 17. Undue influence. 18. Conviction for crime. 19. Same. § 1. Origin of Wills. — Law^s governing the testamen- tary control of property, while a part of the civilization of the nations of Eastern Europe and Western Asia long be- fore the development of the Roman Empire, did not reach any great refinement imtil they became the especial study and care of the methodical Roman jurist and codifier. The Roman Codes however, had but little efifect on our early English common law, especially in regard to wills and the administration of the estates of deceased persons. This was largely due to the communal form of village govern- ment that existed among the Angles, the Jutes and the Saxons at the dawn of authentic history, placing, as it did, - Kel.Mo.P.G.— 1 2 CAPACITY TO MAKE A WILL § 2 such title to real estate as there was and to the great bulk of personal property in the commune, leaving to the in- dividual at his death little to justify the existence of a will. The feudal barons builded their authority upon the decay of the ancient village and tribal governments, and con- tinued, in a measure, the old communal organization within the manor, evolving a social scheme that left but scant op- portunity and little necessity for the development of what we now know as probate law. At the time of the Norman Conquest testamentary control over personal property ex- isted to a limited extent only; for, if a man died leaving a wife and children his personal estate was divided into three equal parts, one of which went to his children or lineal descendants, another to his wife, and the third was at his own disposal by will. Or, if he died without issue, the wife took one half ; and if he left children but no wife, one half went to them, and he might bequeath the other. But if he had neither wife nor children he could dispose of the whole. Blackstone, after exhaustive research, states that no one has a natural right to be the heir of another, no matter how close may be the ties of blood ; nor has any one the natural right to control the disposition of his prop- erty after his death. The right to devise real estate did not exist in England until it had been expressly conferred by the Statute of Wills, the provisions of which have been substantially adopted in the American States. Therefore it may be said that the power to make wills, the manner of executing them, and their efficacy is governed by stat- utory law.^ § 2. Definition. — A last will or testament is defined to be the legal declaration of a party's intention touching the disposition of his property to take effect after his death. The person making the will is the testator ; the person to whom any personal property or money is given by will is called a legatee ; and the gift a legacy or bequest. When real estate is given it is a devise; the person to whom it is given is a devisee, and the testator is then called a devisor. Real estate is devised, personal property is bequeathed, or given as a legacy. The residuary devisee or legatee is the person to whom the remainder of the real or personal estate 1 Ferguson v. Gentry, 206 Mo. 189, 104 S. W. 104; Briant v. Gar- rison, 150 Mo. 655, 52 S. W. 361 ; Stowe v. Stowe, 140 Mo. 504, 41 S. W. 051. § 4 CAPACITY TO MAKE A WILL 3 is devised or bequeathed, after specific devises or bequests have been made. § 3. Nature of a Will. — One of the characteristics of a will is, that it does not take effect, nor are there any rij^jhts acquired under it, until the death of the testator, and its construction depends upon the law as it then stands; there- fore, a statute passed after the making of the will, but be- fore the death of the testator by which the law is chans:ed will operate upon the will.- A will is under the exclusive control of the testator, and is not operative for any purpose until his death ; it is, therefore in all cases a revocable in- strument, even should it in terms be made irrevocable. A deed is distinguished from a will in that the one takes ef- fect immediately upon its execution and delivery during the lifetime of the grantor; the other after his death. ^ A deed cannot be made to take the place of a will, yet an in- strument may be so framed and executed as to operate as a deed in one part, and as a will in another.* But in gen- eral the nature and effect of an instrument cannot be changed by the manner in which it is executed ; for ex- ample, if an instrument in the form of a will should be sealed it cannot for that reason be considered a deed. It seems that where an instrument is so inartificially drawn as to contain the necessary phraseology both of a deed and of a will, and its execution is properly perfected, it should be regarded as a will or deed according to the intention of the maker, however, informal it may be in form or expression. In general the form of the instrument will determine its char- acter, unless a contrary intention is apparent on its face.'^ If husband and wife join in the execution of a joint will disposing of the husband's property, it may be probated, on his death, as his several or separate will." § 4. A Codicil is generally understood to be an addi- tion to, or explanation of, a will, and is to be taken as a part of it, whether its purpose be to explain, alter or make 2 O'Brien v. Ash. 1G9 Mo. 2S3, G9 R. W. 8 ; T.overen v. Lamprey, 2 Fost. (22 N. H.) 4:U ; Trice v. Taylor, 28 Pa. 95, 70 Am. Dec. 105. 3 Terry v. Glover, 2:55 Mo. 544, 139 S. W. 387. 4 Robinson v. Sclily & Cooper, 6 Ga. 515: Taylor v. Kelly. ?,1 Ah\. 59, 68 Am. Dec. 150. c .Miller v. Holt, G8 Mo. 584 ; Cross v. Ilocb, 149 Mo. 325, 50 S. W. 786. Allen V. Allen, 28 Kan. 18. 4 CAPACITY TO MAKE A WILL § 5 some additions thereto, or subtractions therefrom. There may be several codicils to one will ; but the will and all codicils relating to it must, in general, be read as one entire instrument. A codicil may republish or revoke a will, and it may give testamentary effect to an instrument otherwise inoperative, as a will.'' The term "will" is declared by statute to include testaments and codicils as well as wills.* A codicil must be executed with precisely the same formali- ties as a will. § 5. Testamentary Capacity. — A Missouri court has said that the state concedes to the testator the right to dispose of that which, without the Statute of Wills and the Stat- ute of Descents, would belong to the state." This conces- sion is only made to persons of sound mind and of testa- mentary capacity ; these alone can make a valid will. Mental soundness does not alone determine the question of testamentary capacity for a partial, but not entire dis- ability may arise from infancy, coverture and alienage. § 6. Infancy. — The age at which persons are allowed to dispose of their property, by will, is fixed by statute, but the laws of the several states are not uniform on this point; the period of testamentary majority ranging from twenty- one in both male and female in some states, down to four- teen years in others. In some of the states, a difference is made between the ages at which persons may make a will of real estate, and that at which they may make a will of personal estate ; and again a difference is made in some states as to testamentary age between males and females. In Missouri, males, twenty-one years of age and upward may devise property, real or personal, and all interest therein, subject to the widow's dower and homestead rights, if there be a widow. ^"^ Every male person over the age of eighteen years, and possessing in other respects testamen- tary capacity, may bequeath personal property, subject to the widow's statutory rights. ^^ A married or unmarried woman, above the age of eighteen years, may provide for I Harvy v. Chouteau, 14 Mo. 5S7, 55 Am. Dec. 120. 8 Rev. St. 1909, § 580. 9 Briant v. Garrison, 150 Mo. G55, 52 S. W. o61 ; O'Brien v. Ash, J 69 Mo. 283, 69 S. W. 8. 10 Rev. St. 1909, § 5:55. II Rev. St. 1909, § 535. § 7 CAPACITY TO MAKE A WILL 5 the disposition of her property, real or personal, by last will, subject to the husband's right as to curtesy. ^- The iiusband cannot sell, mortgage or alienate the home- stead unless Ihe wife joins in the conveyance ; neither can he by will deprive her and the minor children of their right to it.^'^ Nor can the wife, by will, deprive the hus- band of his estate by the curtesy in her estate, ^^ but he may sell and convey his estate by the curtesy, after her death; ^^ or accept an income given by her will in lieu of curtesy.^® It will be observed that no person who has not attained the age of eighteen years, whether male or female, married or unmarried, can make a valid will for any purpose ; for until then testamentary disability of infants, is entire. But when an infant possessing sufficient discretion, has attained the age prescribed by statute, he or she may make a will without or against the consent of either tutor, father, guard- ian or husband.^^ There is an obvious tendency in the American States to adopt the uniform rule prescribed by the English Statute of Wills, ^^ which fixes the age at which a person, whether male or female, may make a will, of real or personal estate, at twenty-one years. § 7. Coverture. — In many of the states, as in England, coverture is, to a greater or less extent, a testamentary disability; but the tendency evidently is very strong in this country, in the direction of removing all property dis- abilities attaching to married women. ^'^ And they may, in Missouri, as we have shown in the preceding section, dis- pose of their property by will. A married woman may carry on business, contract and be contracted with, sue and 12 Rev. St. 1909, § 5.36. 13 Rev. St. 1909, §§ 6704-6708; Bogart v. Bogart, 138 Mo. 419, 40 S. W. 91 ; Ball v. Ball, 165 Mo. 312, 65 S. W. 552 ; Steepler v. Silverberg, 220 Mo. 258, 119 S. W. 418; West v. McMullen, 112 Mu. 405. 20 S. W. 628. 1* Rev. St. 1909. § 536; Soltan v. Soltan, 93 Mo. 307, 6 S. W. 95; easier v. Gray, 159 Mo. 588, 60 S. W. 1032 ; Waters v. Herboth, 178 Mo. 106, 77 S. W. 305. 16 Miller v. Quick, 158 Mo. 495, 59 S. W. 955. 10 Bank of Commerce v. Chambers, 96 Mo. 459, 10 S. W. 38. 17 Noble v. Enos, 19 InU. 72. 18 1 Vict. c. 26. i» Coughlin V. Ryan, Adm'r, 43 Mo. 99, 97 Am. Dec. 375. 6 CAPACITY TO MAKE A WILL § 8 be sued without joining her husband, and in some cases, may invoke the protection of homestead and exemption laws.-" Formerly a wife could not sue her husband at law, but might do so in equity. It has been held in Missouri that she may now sue her husband either at law or in equi- ty. ^^ The husband may make a promissory note to his wife which she may endorse and transfer to another, and he may assign a cause of action to her by parol. -- § 8. Alienage. — An alien is a person born in a foreign jurisdiction who has not been naturalized, and whose par- ents were not citizens or subjects of the United States. The disability of such a person is, at common law, almost entire. He could not, in general, acquire title to real es- tate by descent or other mere operation of law ; but he could take land by devise or purchase and hold the same or grant it, as against all the world, except the state or sov- ereignty ; and as against the state until an inquest of office found, or some equivalent act of the legislature. The law would not permit him to transmit property by hereditary descent, and he had no inheritable blood ; therefore, upon his death, his lands instantly, and of necessity, without any inquest of office, escheated to the state. -^ In many of the states the disabilities of aliens have been very much modified by statute enactment, or constitutional provisions (their right to hold or transmit property being regarded as wholly within the control of state authority), so that in some states they may hold or grant lands with- out restriction, while in others residence or a declaration of intention to become a citizen of the United States is re- quired. But the civil privileges conferred upon aliens by state authority, are strictly local, and until a foreigner is duly naturalized according to the act of Congress, he is not a citizen of the United States, and is not entitled in any other state, to any other privileges than are allowed by the laws 2 Rev. St. 1909, § S304. 21 Huss V. Culver, 70 Mo. App. 514; Niemeyer v. Niemeyer, 70 Mo. App. 609; Reed v. Painter, 145 Mo. 341, 46 S. W, 10S9 ; Long V. Martin, 71 Mo. App. 569; Montgomery v. Montgomery, 142 Mo. App. 481, 127 S. W. lis. 2 2 Wisdom V. Slianklin, 74 Mo. App. 428; Niemeyer v. Niemeyer, 70 Mo. App. 609 ; .Jenkins v. Covenant Life Ins. Co., 79 Mo. App. 65 ; Sanguinett v. Webster, 153 Mo. 343, 54 S. W. 563. 23 1 Williams on Ex. 11, note. § 9 CAPACITY TO MAKE A WILL 7 of that state to aliens in his situation. In Missouri prior to 1872 a nonresident alien could not acquire title to real es- tate by descent or purchase, but he could take personal property as distributee;^* but now aliens are capable of acquiring-, by purchase, devise or descent, real estate, and of holding, devising or alienating it the same as citizens and residents.'-^ And in case of title by descent it is no bar that any ancestor through whom title is derived, is or has been an alien. -"^ And any female born in the United States, owning real estate in Missouri, who marries an alien and resides in a foreign country, may convey her real estate, or devise it by last will, by conforming to the laws of Missouri as to deeds or wills. -^ An Indian who is a resident of the state, has testamen- tary capacity, and may transfer real estate by devise. § 9. Deaf and Dumb. — Formerly one who was deaf and dumb from his nativity, could not make a will; but now if it sufficiently appears that he knows what a testament means, and has a desire to make one he may by signs and tokens declare his testament. One who is not deaf and dumb by nature, but being once able to hear and speak, by accident loses his hearing and the use of his tongue, may with his own hand write his will. If he cannot write, he is in the condition of those who are deaf and dumb by nature, and may make his will by signs and tokens. Those who can speak and cannot hear, and those who are speechless only, may, whether the defect came by na- ture or otherwise, make their testaments by writing them or by signs. So a blind person may make a will. But in all these cases the testator must be able to communicate with others, and the will, to be valid, must be executed in accordance with the requirements of the statute. It may be reduced to writing by another and the name of the tes- 24 Ilnrney v. Donohoe, 97 .Mo. 141, 10 S. W. 191; Wacker v. Wuck- er, 26 Mo. 426. 2 5 Rev. St. 3909, § 748; Utassy v. Giedinirhagen, 132 Mo. 53, 33 S. W. 444. 26 Rev. St. 1909, § 339; Sullivan v. Burnett, 105 U. S. 334, 26 L. Ed. 1124. 2T Rev. St. 1909, § 749; Burke v. Adams, SO Mo. 504, 50 Am. Rep. 510. 8 CAPACITY TO MAKE A WILL § 10 tator signed thereto by his direction in his presence or he may sign it by affixing his mark to his name. § 10. Mental Incapacity.— The law requires, in all cases, that the testator should be a person of "sound mind." Indeed, no contract or act made or performed by a person of "unsound mind" has any binding force or efficacy in law, equity, or morals ; and it makes no difference what caused the mental deficiency, nor of how brief or long standing it may have been, the effect upon the act is the same. It is the condition of the mind, and not of the body, that must be looked to, for the latter may be in a state of extreme weakness and dependency, and yet the mind possess suf- ficient vigor and understanding to direct the disposition of property. Memory, or capacity to think and comprehend the work in hand, is the essential ingredient in a will. It may be very imperfect, greatly impaired by age or disease, so that the testator may not be competent to contract or transact business. The testator may notf be able at all times to recollect the names of persons with whom he has been in- timately acquainted, may at times ask idle and foolish ques- tions, and yet his understanding be sufficiently sound to en- able him to know and understand the business in which he is engaged at the time he executes his will, for he may have often thought of the subject and arranged the matter in his mind before it was committed to writing. He should be able to understand the elements of which the will is com- posed; should recollect the property he means to dispose of, the persons who are objects of his bounty, and the man- ner in which it is to be distributed between them,-^ * al- as Harvey V. Heirs of Sullens, 56 Mo. 372; s. c, 46 Mo. 147, 2 Am. Rep. 491; Benoist v, Murrin, 58 Mo. 307; Young v. Riden- baugh, 67 Mo. 574; Thomas v. Stump, 62 Mo. 275; Maddox v. Mad- dox, 114 Mo. 35, 21 S. W. 499. 35 Am. St. Rep. 7.34 ; Norton v. Pax- ton, 110 Mo. 456, 19 S. W. 807 ; Thompson v. Ish, 99 Mo. 160, 12 S. W. 510, 17 Am. St. Rep. 5.52; Appleby v. Brock, 76 Mo. 314; Sehr V. Lindemann, 1.53 Mo. 276, 54 S. W. 537; Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. St. Rep. 576 ; Fulbright v. Perry County, 14.5 Mo. 4.32, 46 S, W. 955 ; Aylward v. Briggs, 145 Mo. 604, 47 S. * The following definition of testamentary capacity is given in the case of Crum v. Crum, 231 Mo., loc. cit. 638, 132 S. W. 1073: "A gen- eral definition satisfying the judicial mind in this jurisdiction nuist be deduced from many cases, and we think may be held to be that, if a person has not mind and memory enough to understand the or- dinary affairs of life, the value, nature and extent of his property, g 10 CAPACITY TO MAKE A WILL 9 though he need not be able to make contracts or to manage his estate.-'' He should have mind and memory enough to understand the ordinary affairs of life, the extent and nature of his property, the number and names of the per- sons to whom he desires to give it, and sufficient intelli- gence to understand the act he is performing. But if a man has no memory, if this faculty is wholly extinguished or so badly impaired that he does not know or understand what he is about, cannot comprehend the material provisions of the will, not in its legal effect, but in its simple forms, he must be regarded as a person of unsound mind and incompetent to make a will."" The ca- pacity of the testator must be determined by the condition of his mind at the very time the will is made, but evidence as W. 510; Couch v. Gentry, 113 Mo. 248, 20 S. W. 890; Berberet v. Berberet. 131 Mo. 301). 33 S. W. 61, 52 Am. St. Rep. 634; Defoe v. Defoe, 144 Mo. 458, 46 S. W. 433; Hughes v. Kader. 183 Mo. C30. 82 S. W. 32 ; Sayre v. Trustees of Priuceton University, 192 Mo. 95, 90 S. W. 787 ; Gibony v. Foster, 230 Mo. 106, 130 S. W. 314 ; Crossan V. Crossan. 169 Mo. 631, 70 S. W. 136; Roberts v. Bartlett, 190 Mo. 680, 89 S. W. 858 ; Holton v. Cochran, 208 Mo. 314, 106 S. W. 10:55 ; Weston v. Hanson, 212 Mo. 248, 111 S. W. 44; King v. Gilson, 206 Mo. 264. 104 S. W. 52. 2t> Brinknian v. Rueggesick. 71 Mo. 553; McFadin v. Catron, 138 Mo. 197, 38 S. W. 932; Riley v. Sherwood. 144 Mo. 354, J5 S. W. 1077 ; Riggin v. Board of Trustees of Westminster College, 160 Mo. 570, 61 S. W. 803 ; Schierbaum v. Schemme, 157 Mo. 1, 57 S. W. 526, 80 Am. St. Rep. 604. 3 McKissock v. Groom. 148 Mo. 459, 50 S. W. 115; Riggin v. Board of Trustees of Westminster College, 160 JIo. 570. 61 S. W. 803; Turner v. Anderson. 2.36 Mo. 523, 139 S. AV. 180; Wilson v. Jackson, 167 Mo. 135, 66 S. W. 972. the number and names of the persons who are the natural objects of his bounty, iheir desserts irith reference to their conduct and treat- ment of him, their capacily and necessity, and has not active meiuory enough to retain all these facts in his mind long enough to have his will prepared, he has no power to dispose of his property by will ; a mind so afflicted with weakness and limitations is not a testamenta- ry one." The following cases are cited by the court: Riggin v. Board of Trustees of Westminster College, 160 Mo. 570. 61 S. W. 803; Holton v. Cochran, 208 Mo. 314. 106 S. W. 1035; Goodfellow V. Shannon. 197 Mo. 271, 94 S. W. 979; Meier v. Buchter, 197 Mo. 68, 94 S. W. 883, 6 D. R. A. (N. S.) 202. 7 Ann. Cas. 887; Knapp V. St. Louis Trust Co.. 199 Mo. 665. 98 S. W. 70; Harvey v. Sullens' Heirs, 56 Mo. 372 ; Turner v. Anderson. 236 Mo. 523, 139 S. W. 180, cites Crum v. Crum, 231 Mo., loc. cit. 638. 132 S. W. 1070, and gives the same definition of testamentary capacity. 10 CAPACITY TO MAKE A WILL § 11 to the condition of his mind shortly before and soon after its execution may be admitted as bearing on the question. ^^ § 11. Idiocy. — A fool or madman from his infancy, who never has lucid intervals, cannot make a will. The ques- tion of idiocy is clearly a question of fact to be determined by the circumstances of each particular case. It is a condi- tion of the mind readily discovered by observation, but not easily described. Lord Erskine said that : "In the idiot we see the human frame without the human capacity." If an idiot should make his will so well and so wisely in appearance that it would seem rather to be the act of a rational man, than of one void of discretion, it would be void in law.^- * § 12. A Lunatic, that is, one who has had understand- ing, but by disease, grief or accident, has lost the use of his reason, so that he is insane at times only, cannot make a will during the time of his insanity. A will made at such time would be void, although he should afterwards recover his former understanding. A lunatic may have a clear, calm intermission of the disease, called a lucid interval, and during the quietness and free- dom of mind which occurs in such interval, it is well set- tled that he may make his will. But the interval must not be a mere diminution or remission of the disease, but must be a sort of temporary cure; an intermission so clearly marked as in every respect to resemble the restoration of health to the mind. The interval of tranquility should be of sufficient length of time to give perfect assurance of the return of reason. We may remark here that all persons are, in general, presumed to be of sound mind until the contrary appears, 31 Von De Veld v. Judy, 143 Mo. 348, 44 S. W. 1117; Hamburger V. Rinkel, 164 Mo. 398, 64 S. W. 104; Wood v. Carpenter, 166 Mo. 465, 66 S. W. 172. 3 2 Campbell v. Carlisle, 162 Mo. 634, 63 S. W. 701; Southworth V. Southworth, 173 Mo. 59, 73 S. W. 129. *A prima facie case is established, in a will contest, when the proponents prove the execution of the will, that the testator was of the requisite age and of sound mind. It then devolves on the con- testants to establish incompetency or undue influence. Carl v. Ga- bel, 120 Mo. 283, 25 S. W. 214 ; Sehr v. Lindemann, 153 Mo. 276, 54 S. W. 537 ; Riggin v. Board of Trustees of Westminster College, 160 Mo. 570, 61 S. W. 803. § 13 CAPACITY TO MAKE A WILL 11 and the burden of proof lies on the party wlio allej::;'es in- sanity. But where habitual insanity is once established, the party who would take advantage of an interval of rea- son must prove it, and the establishment of a lucid in- terval repels for the time being the presumption of inca- pacity resulting- from the proof of insanity. If a lunatic make a will and it is not known whether he was at the time of the act sane on insane, he will be inferred rational or not, from the nature and character of the terms of the will. If he disposes of his estate judiciously and in accordance with the natural instincts of human nature, and there be no evidences of folly or injustice disclosed by it, his will should be permitted to stand, otherwise not. The following quotation from Dr. Francis Willis ably points out the difference between an unsound mind and a weak mind : "A sound mind is one wholly free from delusion. Weak minds again only differ from strong ones in the extent and power of their faculties ; but unless they betray symptoms of delusion, their soundness cannot be questioned. An unsound mind, on the contrary, is marked by delusion, by an apparent insensibility to, or perversion of, those feelings which are peculiarly characteristic of our nature. Some lunatics, for instance, are callous to a just sense of aft'ec- tion, decency, or honor; they hate those without a cause, w^ho were formerly most dear to them ; others take delight in cruelty ; many are more or less offended at not receiv- ing that attention to which their delusions persuade them they are entitled. Retention of memory, display of talents, enjoyment in amusing games, and an appearance of ration- ality, on various subjects, are not inconsistent with un- soundness of mind; — hence, sometimes, arises the difficulty of distinguishing between sanity and insanity." It may not be improper to remark here that a lunatic restored to his reason may make a will, though the guard- ianship under which he has been placed, as non compos remains unrevoked. But he could not, while under guard- ianship, make a contract, but if not in ward and the other party did not know he was insane, and no advantage was taken of him, the contract will not be set aside unless the parties can be placed in statu quo. § 13. Senile Dementia, — Besides natural idiots and lunatics alreadv mentioned, there are others who were of 12 CAPACITY TO MAKE A WILL § 14: sound memory, but who have become non compotes, by the visitation of God, or by their own act. Those falling un- der this head, and whose cases most frequently induce in- vestigation, are such as have become disqualified by sick- ness or the infirmities of old age, or who have destroyed their reason by drunkenness. But old age alone does not disqualify; there is no period beyond which a man shall be conclusively adjudged to be incompetent to make a will. "The law" says Chancellor Kent, "looks only to the ca- pacity of the mind ; and neither age, nor sickness, nor ex- treme distress or debility of body, will affect the capacity to make a will, if sufficient intelligence remains." It is one of the painful consequences of extreme old age, that it ceases to excite interest, and it is apt to be left solitary and neglected. The control which the law gives to a man over the disposal of his property, is one of the most efficient means which he has in protracted life to command the at- tentions due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circum- stances of his situation, and the course of natural affection dictated. ^^ § 14. Drunkenness. — The remaining class under this head, is that of the drunkard. Drunkenness is a species of insanity, and where it exists to the extent of depriving the testator of the use of his reason and understanding, he is incompetent to make a will. Long continued habits of intemperance may gradually impair the mind, so as to produce insanity of another kind, called mania-a-potu, or delirium tremens. This sort of in- sanity is usually temporary in its duration, and is followed not merely by a lucid interval, but by perfect restoration to reason. Yet drunkenness, long continued, or much in- dulged in, may, and indeed, often does, produce on some minds or some temperaments, total idiocy, permanent de- rangement, fixed insanity. Usually, the existence of insanity once established re- 3 3 Rule V. Maupin, 84 Mo. 587; Selir v. Liudemann, 153 Mo. 276, 54 S. W. 537 ; Harvey v. Sullens. 46 Mo. 147, 2 Am. Rep. 491 ; Cath- olic University of America v. 0"Brieu, 181 Mo. 68, 79 S. W. 901; Hill V. Boyd, 199 Mo. 438, 97 S. W. 918 ; Kischman v. Scott, 166 Mo. 214, 65 S. W. 1031. § 16 CAPACITY TO MAKE A WILL 13 c|uires proof from the other party to show a restoration or recovery, and in the absence of such proof it is presumed to continue. But if the insanity is shown to be the result of drunkenness, or directly connected with some violent disease, the presumption of continued insanity docs not arise, and the party allei^in.e;- it must show its existence up to the time which bears directly upon the subject in con- troversy. § 15. Duress. — A contract entered into by a person, by duress of imprisonment, or duress per minas, is void, or, more properly speaking, voidable. A will executed under duress is also void. It is a universal rule applicable to all species of contracts, and to wills which are mere gratuities, that they must have the full and free consent of the par- ties making them ; at least they must not be procured by fraud, force or violence, nor by imprisonment, or illegal restraint, either actual or constructive. To constitute du- ress it is not essential that the party be threatened with the loss of life or limb, or with mayhem ; but it is enough if he acts from fears excited by threats of illegal imprison- ment.^* If it can be demonstrated that actual fear was used to compel the testator to make the will, there can be no doubt that, although all formalities in its execution have been complied with, and the party perfectly in his senses, the will cannot stand." ^ It is not every fear or vain fear, that will annul a will. It must be a just fear, that is, such as that without it, the testator would not have made his will at all, or at least not in that manner. No general rule can be laid down by which to determine every case ; each particular case must be left to the discretion of the court, who ought to consider the situation of the parties, the na- ture of the injury threatened, the apparent power of the party making the threats to put them into effect and the condition of the person threatened. § 16. Fraud, — Fraud is no less detestable in law than open force. Therefore, when the testator is circumvented by fraud, the will is void as much as if it was the result of fear. No comprehensive and satisfactory definition of fraud 84 Archambault v. Blanchard, 198 Mo. 384, 95 S. W. S.'U ; Schier- baum V. Schemme, 157 Mo. 7, 57 S. W. 526, SO Am. St. Rep. 604. 3 6 Meredith v. Meredith, 79 Mo. App. 636; Hensinger v. Dyer, 147 Mo. 219, 48 S. W. 912 ; Springlleld Engine & Thresher Co. v. Dono- van, 147 Mo. 622, 49 S. W. 500. 14 CAPACITY TO MAKE A WILL § 17 has ever been formulated. It takes all of the many varying forms and combinations that occur to the minds of shrewd and scheming men who attempt to gain as a result of their deceit, misrepresentation and false statements. Fraud in procuring a will may consist in the assumption of a false character by one for the purpose of inducing a bequest in his favor by another. It may consist in false statements made with reference to one who would otherwise be the object of the testator's bounty. Any person has a right by fair argument and persuasion, or by virtuous influence to induce another to make a will in his favor. ^" A will cannot be set aside for fraud by means of a suit in equity as this jurisdiction is lodged exclusively by statute in the probate courts and should be made at the probate of the will. § 17. Undue Influence. — Undue influence as an affirma- tive defense is far more important in the law of wills than fraud, although in many of their phases the two are largely co-ordinate and exist together. Where dominion is ac- quired by one person over the mind of another, which is sufficiently sane for general purposes, to the extent of pre- venting the free exercise of his discretion in disposing of his property by will, it would be regarded as a case of undue influence and inconsistent with the idea of a dis- posing mind. But the influence to vitiate an act must amount to force or coercion, destroying free agency. It must not be the influence of affection and attachment. It must not be the mere desire of gratifying the wishes of an- other, for that would be strong ground in support of the will. It must be shown that the act was obtained by coer- cion or importunity, which could not under the circum- stances be resisted and produced compliance for the sake of peace. •'''^ If a wife by her virtues has gained such ascendency over her husband, that her pleasure is the law of his conduct, such influence is no reason for impeaching a will made in her favor, even to the exclusion of the residue of his family. 36 Blanchard v. Nestle, 3 Denio (N. Y.) 4.3; Miller v. Miller, 3 Serg. & K. (Pa.) 207, 270, 8 Am. Dec. 6.51 ; Gordon v. Burris, 153 Mo. 223. 54 S. W. 546; Gay v. Gillilan, 92 Mo. 250, 5 S. W. 7, 1 Am. St. Rep. 712. 37 Lyne V. Marcus, 1 Mo. 410, 13 Am. Dec. .509; Garland v. Smith, 127 Mo. .583, 28 S. W. 19G, 29 S. W. S3G ; Hans v. Holler, 165 Mo. 47, 65 S. W. 308. § 18 CAPACITY TO MAKE A WILL 15 Nor would it be safe to set aside a will on the c^round of influence, importunity or undue advantage taken by his wife over his mind and conduct in the general concerns of life, unless there should be proof that such influence was specially exerted to procure a will peculiarly acceptable to her and prejudicial to others. ■''' "The undue influence that will break a will must be present, in active exercise, and rise to the mark of such over-persuasion, coercion, force, fraud, or deception, as breaks the will power of testator and puts in its stead the will of another." ^^ In other words the testator becomes a mere instrument in the hands of the one exercising the undue influence.*" "It is also the law in Missouri that any degree of influence over another acquired by kindness and affectionate attention, can never constitute undue influence within the meaning of the law," *^ It must be what the term itself implies "undue" influence. The mere fact that a legatee had an influence over the mind of the testator, growing out of confidential relations, is no objection to the validity of a bequest, unless the in- fluence was used to procure it. Where a confidential relation is shown between the tes- tator and the recipient of his bounty, an exerted influence will be presumed and the burden is on the beneficiary to repel the presumption, but where mental capacity and free agency appear the testator may make an unjust or inju- dicious will.'*'- § 18. On Account of Conviction for Crime. — Persons in- capable at common law of making wills and testaments on 3 8 Gardner v. Gardner, 22 Wend. (N. Y.) 526. 34 Am. Dec. 040; Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087; Sunderland v. Hood, 84 Mo. 293; Tibbe v. Kanip, 154 Mo. 545, 54 S. W. 879, 55 S. W. 440. 3 9Kiscliman v. Scott, 166 Mo. 214, 65 S. W. 1031; Aylward v. Brigfc's, 145 Mo. 604, 47 S. W. 510. 40 Weber v. Strobel. 236 Mo. 649, 139 S. W. ISS ; INIartin v. Bow- dern, 158 Mo. 379. 59 S. \\. 227 ; Crowsou v. Crowson, 172 Mo. 691, 72 S. W. 1065 ; Riley v. Sherwood. 144 Mo. 354, 45 S. W. 1077 ; Nor- ton V. Paxton, 110 Mo. 456, 10 S. W. 807. ^3 Weber v. Strobel. 2.36 Mo. 649, 139 S. W. 188; Campbell v. Car- lisle, 162 Mo. 634. 63 S. W. 701 ; Scibort v. Hatcher, 205 Mo. 83, 102 S. W. 962 ; Dausman v. Rankin, 189 Mo. 677, 88 S. W. 696, 107 Am. St. Rep. .391 ; Sehr v. I.indeinann, 1.53 Mo. 276, 54 S. W. 537. 42Maddox v. Maddox. 114 :SIo. 35. 21 S. W. 499. .35 Am. St. Rep- 734: McFadin v. Catron, 138 Mo. 197, .39 S. W. 771. 16 CAPACITY TO MAKE A WILL § 18 account of their criminal conduct, from the time of their conviction, were all traitors and felons ; for then their goods and chattels were no longer at their own disposal, but were forfeited to the king.*^ But if a convict obtained the king's pardon, he was thereby restored to his former es- tate, and could bequeath it the same as if he had not been convicted. This incapacity also extended to a felo de se, and to outlaws, so long as the outlawry subsisted.** For- feiture of estate and corruption of blood for any offense under the constitution and laws of the United States are abolished. Yet, as forfeiture of property in case of treason was a part of the common law, it must exist now in those states where it has not been abolished by their constitu- tions or statutes. Several of the state constitutions have provided that no attainder of treason or felony shall work corruption of blood or forfeiture of estate, except during the life of the offender, and others have abolished this pen- alty absolutely ; and still others confine it to the case of conviction for treason, or treason and murder. By the constitution, there can be no forfeiture of estate for any crime; the estates of persons who destroy their own lives descend and vest, as in cases of natural death. *^ And the statute provides that no conviction of any person for any offense whatever shall work corruption of blood or forfeiture of any estate or any right or interest therein ; and all forfeitures in cases of suicide, or death by casualty, or where any person shall flee from justice, are abolished.** Thus it will be seen that there is no disability in this state arising from forfeiture for crime, and the common law upon the subject is entirely abolished. § 19. Same. — But there is a class of cases where inca- pacity arises from conviction for crime. Thus, a sentence of imprisonment in the penitentiary for a term less than for life, suspends all civil rights of the person so sentenced during the term thereof, and forfeits all public offices and trusts, authority and power; and persons sentenced to such imprisonment for life, are thereafter, to be deemed civilly dead.*^ This applies to a conviction in a state court, and not in a Federal court.** 43 2 Blacks. Com. 499. •»* Td. 4& Const. Mo. art. 2, § 13. 46 P.ev. St. 1909, § 4917 ; Williams v. Shackleford, 97 Mo. 322, 11 S. W. 222. 4 7 Rev. St. 1909, § 2891. 4 8 Presbury v. Hull, 34 Mo. 29. § 19 CAPACITY TO MAKE A WILL 17 Civil death is the state of a person who, though yet in life, has lost all his civil rights, and as to them, is consid- ered as dead. The right to make a will is undoubtedly one of the civil rights which is suspended by sentence of im- prisonment in the state's prison. A contract or mortgage made by such a convict is void. If such convict be at the time of the sentence, an execu- tor, administrator or guardian, the trust is thereby forfeited, and another may be appointed in his place. Kel.Mo.P.G.— 2 18 FORM AND MANNER OF MAKING WILLS § 20 CHAPTER II OF THE FORM AND MANNER OF MAKING WILLS § 20. Essential ingredients. 21. The will must be in writing. 22. How to be worded. 23. Same— Rule in Shelley's Case— What estate, 24. By whom written— Presumptively void when. 25. Must depend on event of death. 26. How and where to be signed. 27. Same. 28. How attested. 29. Competency of attesting witnesses. 30. Attestation — Clause. 31. Care in drafting will. Form of written will. Form of codicil. Form of nuncupative will. § 20. Essential Ingredients. — Wills and codicils are of two kinds; written and unwritten, or nuncupative. By the Statute of Wills of 1535 wills of free hold lands must be in writing, but no solemnities of any kind were necessary for their execution. But the English Statute of Frauds re- quired the formalities of signature and attestation to de- vises of lands and generally speaking, a will of personal property was required by it to be reduced to writing in the testator's lifetime, but no other formality was necessary. It, therefore, often happened that a will, intended to be- queath both real and personal estate, was inoperative as to the former, but valid as to the latter. In England, how- ever, by the act^ which took effect January 1, 1838, the same formalities of execution and attestation are necessary, whether the will disposes of real or personal estate. The regulations for the execution of wills in the several states may dififer in some essential particulars, but they have adopted substantially the formalities required by the Eng- lish law, making no distinction between wills of real or personal estate. In Missouri, three essential ingredients enter into the ex- ecution of a will, viz.: 1. It must be in writing. 2. It must be signed by the testator, or by some person by his direc- 1 1 Vict. c. 26. § 22 FORM AND MANNER OF MAKING WILLS 19 lion, in his presence. 3. It must be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.- We shall notice these formalities somewhat in detail, in the order in which they are named, and add a few other mat- ters connected with the subject under appropriate headings. § 21. The Will must be in Writing. — A will is usually written on paper or parchment with pen and ink. But it has been held that a will written in pencil instead of ink is good; and it may be written or printed on any sort of ma- terial. So, if a will be in print, engraving, or lithograph, it is no doubt a sufficient compliance with the law.'' Al- though it would be more prudent, certainly, to write it with pen and ink on good paper or parchment. No particular form of words is necessary, nor is it material in what lan- guage it is written. If it be written in a foreign language, probate may be granted of a translation.* As the attesting witnesses need not hear the will read, it follows that they need not understand the language in which it is written. Nor is it necessary that the testator should understand the language of the instrument, if it is properly interpreted to him and he fully comprehends its contents. The date is not a material part of a will. It will be valid though it has no date or a wrong one. The actual time when it was executed may be shown by parol evidence.^ § 22. How Worded. — It is not necessary that the direc- tions in a will as to how property should be disposed of in the event of death, should be in direct and imperative terms. Wishes and requests, such as "It is my wish," "Most earn- estly wish," "Recommend," "I desire," "I bequeath," etc., are deemed sufficient. In a will of real estate, the word heirs is not necessary to pass an estate in fee, if the inten- tion of the testator to pass a fee is apparent from an ex- amination of the whole instrument.^ The word "estate" 2 Rev. St. 1009, § rjr,7 ; Cox v. Cox, 101 Mo. IGS. 13 S. W. 1055 ; Watsou V. Watsou. 110 Mo. 16S, 19 S. W. 543; West v. West, 144 Mo. 119, 46 S. W. 139; Cutlett v. Catlett, 55 Mo. 330; Beyer v. Hermann, 173 Mo. 295, 73 S. W. 1G4. 3 1 Kedf. on Wills, 1G5. 4 Berberet v. Berberet, 131 Mo. 399, 33 S. W. 61, 52 Am. St. Rep. 634. 5 West V. West. 144 Mo. 119, 46 S. W. 1.39. c Watson v. Watson. 110 :Mo. 164, 19 S. W. 543; Rothwell v. .Tanii- son, 147 Mo. 601, 49 S. W. 503; Meiners v. Meiners, 179 Mo. 614, 20 rOKM AND MANNER OF MAKING WILLS § 22 passes a fee.^ The general rule is, that, a devise of an estate generally or indefinitely, with a power of disposition over it, carries a fee. But words of mere implication will not convert a life estate into a fee, unless the manifest intent of the testator requires it.* In order to effectuate the meaning of a will words may be supplied, transposed or changed.® But it must be apparent from the general tenor and con- text of the will that certain words have been omitted or words have been improperly used.^° § 23. Same — Rule in Shelley's Case. — A devise of real estate to any person for life, and after his or her death, to his or her children or heirs, or right heirs in fee, vests an estate for life only in the devisee, and the remainder in fee simple passes to such children.^^ This abrogates the rule in Shelly 's case. But in all devises of land or other estate in which the words "heirs and assigns," or "heirs and assigns forever" are omitted, and no expressions are con- tained in the will showing the devise was intended to con- vey an estate for life only, and no further devise be made of the devised premises, to take eft'ect after the death of the devisee, it should be understood to be the intention of the testator thereby to devise an absolute estate, in fee sim- 78 S. W. 795; Roth v. Rauschenbusch, 173 Mo. 5S2, 73 S. W. 664, 61 L. R. A. 455; Gannon v. Albright, 183 Mo. 238, 81 S. W. 1162, 67 L. R. A. 97, 105 Am. St. Rep. 471. 7 Shumate v. Bailey, 110 Mo. 411, 20 S. W. 178 ; Noe v. Kern, 93 Mo. 367. 6 S. W. 2.39, 3 Am. St. Rep. 544. 8 Gregory v. Cowgill, 19 Mo. 415 ; Cook v. Couch, 100 Mo. 29, 13 S. W. 80 ; Hurst v. Von de Veld, 158 Mo. 239, 58 S. '.V. 1056. See po.st, § 100. 9 Nichols V. Boswell, 103 Mo. 151, 15 S. W. 343 ; Maguire v. Moore, 108 Mo. 267, 18 S. W. 897; Ringquist v. Young, 112 :Mo. 25, 20 S. W. 159; Garth v. Garth, 139 Mo. 456, 41 S. W. 238; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786; Briant v. Garrison, 150 Mo. 655, 52 S. W. 361 ; Hurst v. Von de Veld, 158 Mo. 239, 58 S. W. 1056 ; Simmons v. Cabanne, 177 Mo. 336, 76 S. W. 618; RoBards v. Brown, 167 Mo. 447, 67 S. W. 245. 10 Thomson v. Thomson, 115 Mo. 56, 21 S. W. 1085, 1128 ; Drake V. Crane, 127 Mo. 85, 29 S. W. 990, 27 I/. R. A. 653. 11 Rev. St. 1909, § 578; Owen v. Eaton, 56 Mo. App. 563; Corn- well V. WulfE, 148 Mo. 542, 50 S. W. 439, 45 L. R. A. 53 ; Greftet v. Willman, 114 Mo. 106, 21 S. W. 459 ; Russell v. Eubanks, 84 Mo. 82 ; Reindors v. Koppehnann. 68 Mo. 482, 30 Am. Rep. 802; Riggins v. McClellan, 28 Mo. 23. § 24 FORM AND MANNER OF MAKING WILL8 21 pie, to the devisee.^- An executory devise to the unborn child of an unborn child is void. Such a devise, to be valid, must take effect, if at all, within a period comprised within a life or lives in being and twenty-one years thereafter, with the addition of the period of gestation of a child en ventre sa mere.^'* A limitation inconsistent with an abso- lute gift is void, and a fee passes to the first taker.^* The rule is that an estate in fee created by a will cannot be cut down or limited by a subsequent clause, unless the testator has clearly shown such to be his intention.^ ^ These stat- utory provisions must control the quantity of the estate which passes by a devise in all cases where they are ap- plicable, therefore it is unnecessary to collect authorities on this point. § 24. By whom Written — Presumptively Void. — It is not, in general, material to the validity of a will, whether it be written by the testator himself or by some other per- son for him, so it contains a fair and true expression of his desires. By the civil law, however, if a person wrote a will in his own favor it was void. But this rule has not prevailed to any considerable extent in England or in this country. In such a case, the burden of proof lies on the party by whom the will was written to show that it ex- presses the wishes of the testator. The fact of writing the will excites suspicion, and is a presumption against its valid- ity, whi.-h must be removed, or the court will pronounce against it.^*^ But if it should appear that the testator gave 12 Rev. St. 1909, § 579; Cook v. Couch, 100 Mo. 29, 13 S. W. 80; Owen V. Eaton, 56 Mo. App. 56.3 ; Simmons v. Cabanne. 177 Mo. 336, 76 S. W. 618 ; Yocum v. Siler, 160 Mo. 281, 61 S. W. 208. i3Lockridge v. Mace, 109 Mo. 162, 18 S. W. 1145; Gates v. Sei- bert, 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Rep. 625; Sliepperd V. Fisber. 206 Mo. 208, 103 S. W. 989 ; Gray on Perpetuities, §«? 369 to 382 ; 1 Wusbburn on Real Property (4th Ed.) p. 110, c. 4, § 57. 14 Campbell v. Beaumont, 91 N. Y. 465; Wead v. Gray, 78 Mo. 59; Coruwell v. Wulff, 148 Mo. 542, 50 S. W. 439, 45 L. R. A. 53 ; Papin V. Piednoir, 205 Mo. 521, 104 S. W. 63; Roth v. Rauchenbusch. 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455 ; Underwood v. Cave, 176 Mo. 1, 75 S. W. 451. ic Chew V. Keller, 100 Mo. 362, 13 S. W. 395; Small v. Field. 102 Mo. 104, 14 S. W. 815 ; Yocum v. Siler, 160 Mo. 281, 61 S. W. 208. 10 Harvey v. Sullens, 46 Mo. 147, 2 Am. Rep. 491 ; Garvin's Adm'r V. Williams, 50 Mo. 206 ; McFadin v. Catron. 138 Mo. 197, 38 S. W. 932, 39 S. W. 771 ; Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087 ; 22 FORM AND MANNER OF MAKING WILLS § 25 instructions for drawing the will, or that it was read over to or by, him, and he knew its contents, it will be upheld. ^^ A will by a w^ard to his guardian is also presumptively void,^^ and so is one in favor of a priest or religious adviser.^** But the rule as to transactions between persons standing in confidential relations does not apply to gifts, grants or do- nations from parent to child ;^** but it would apply to a gift from the child to the parent."^ § 25. Must Depend on Event of Death. — We may re- mark again that no particular form of words is necessary to make a will of either real or personal estate. But what- ever may be the form or language of the instrument, it is essentially requisite that it should be made to depend upon the "event of death" to consummate it; for where a paper directs a benefit to be conferred inter vivos, without refer- ence, expressly or impliedly, to the death of the party con- ferring it, it cannot be established as a testament. "- § 26. How to be Signed. — What amounts to sufficient signing by the testator, has been a question of no little con- troversy. The statutes of some of the states require the sig- nature to be placed at the end of the instrument, and this is the English statute, but the statutes of many of the states, including Missouri, do not expressly require the sign- ing to be at the end of the instrument. It has been held that a will commencing with the name of the testator, especially if it be written by him, is properly signed, if it be his in- tention to adopt the writing of his name at the beginning of his will as his final signature thereto. But in the very Barkley v. Barkley Cemetery Ass'n, 153 Mo. 300, 54 S. W. 4S2 ; Mil- tenberger v. Miltenberger, 78 Mo. 27. 17 Berberet v. Berberet, 131 Mo. 399, 33 S. W. 61, 52 Am. St. Rep. G34; Beyer v. Hermann, 173 Mo. 295, 73 S. W. 164. 18 Garvin's Aclm'r v. Williams, 44 Mo. 465, 100 Am. Dec. 314; Bridwell v. Swank. .84 Mo. 455; Tibbe v. Kamp, 154 Mo. 545, 54 S. W. 879, 55 S. W. 440. 19 Hegney v. Head, 126 Mo. 619, 29 S. W. 587. 2 Hatcher v. Hatcher, 1.39 Mo. 614, 39 S. W. 479; Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. St. Rep. 576 ; Aly ward v. Briggs, 145 Mo. 604, 47 S. W. 510; Kischman v. Scott, 166 Mo. 214, 65 S. W. 1031. 2iBradshaw v. Yates, 67 Mo. 221; McKinney v. Hensley, 74 Mo. 326. 2 2 Maze V. Baird, 89 Mo. App. 348; Robnett v. A.s]ilock. 49 Mo. 171; Miller v. Holt, 68 Mo. 584; Christ v. Kuehue, 172 Mo. US, 72 S. W. 537. § 27 FORM AND MANNER OF MAKING WILLS 23 nature of things the appropriate place for the signature is at the conclusion or foot of the will, and the custom of placing the signature at that place is now so nearly uni- versal that the pro])riety of recognizing the name, if placed elsewhere, as a final signature of the party, may be seriously questioned.-^ But the desire of the courts to uphold such instruments and prevent apparent hardships, has led to a virtual evasion of the letter, if not of the spirit of the law. Of course where the statute requires the will to be signed at the end, it must be complied with; -* and where a will was not signed at the conclusion or end, and was not writ- ten by the testator, it was held not properly signed, al- though it was assented to by him and attested by wit- nesses.-'' § 27. Same. — The will may be signed by the testator writing his name, or by making his mark thereto, and the courts will not stop to inquire wdiether he could or could not write his own name.-" Whenever he is physically un- able to subscribe the will without assistance, his hand may be guided by another, and it is not necessary that any ex- press request should be made by him for such assistance. Signing a wrong name against the mark, or by the initials of the name, or by an assumed or fictitious name, has been held sufficient.-' It is not essential that the testator should write his own nanie. It may be signed by any other person by Ids direction in his presence.-^ In such case, something more than the mere assent of the testator to the signing should appear ; he should in some manner, by act or word, direct the signing, and it must be done in his presence. Under the Missouri statute of 1845, the person who signed the testator's name to his will by his direction was required to subscribe his own name as a witness, and state that he subscribed the testator's name at his request, or the 2 3 Catlett V. Ciitlett, 55 Mo. 330; Walton v. Keudrick, 122 Mo. 504, 27 S. W. 872, 25 L. K. A. 701. 2 4 Hewitt's Will, In re, 91 N. Y. 2G1. 25 Catlett V. Catlett, 55 Mo. 330; Stephens v. Stephens, 129 Mo. 422, 31 S. W. 702, 50 Am. St. Rep. 454. 2G St. Ivouis Hospital Ass'n v. Williams' Adm'r, 19 Mo. 609; Steph- ens V. Stephens, 129 Mo. 422, 31 S. W. 792, 50 Am. St. Rep. 454. 27 1 Redfield on Wills, 204. 28 Walton V. Kendiitk, 122 Mo. 504, 27 S. W. 872, 25 L. R. A. 701 ; Lindsey v. Stephens, 229 Mb. GOO, 129 S. W. 641. 24 FORM AND MANNER OF MAKING WILLS 28 will was void.2« But such has not been the law since the revision of 1855. § 28. How Attested.— /f must be attested by two or more competent zvitncsscs subscribing their names to the 7C'/// /;/ the presence of the testator. As the attesting wit- nesses are required to attest both the signature and the san- ity of the testator at the time of the execution of the will they should act cautiously and with due circumspection.-*" It is not essential, however, to the probate of the will in solemn form by proceedings in the circuit court that the witnesses should testify that the testator was of sound mind; the fact may be proven by other testimony.^^^ The testator must sign the will before or at the time it is at- tested, and not afterward.^^ jt jg not necessary that it should be signed in the presence of the witnesses or that they should be advised of its contents ; if it has been pre- viously signed and he acknowledges the signature or instru- ment to be his will, it is sufficient, and they may properly subscribe their names as attesting wutnesses.^=* Neither is it essential that the witnesses should all attest it at the same time, or in the presence of each other; one may at- test it at one time and another at a different time and, in the absence of each other, but the attestation of each must be made in the presence of the testator, i. e., he must be able, if so disposed, to see both the witness and the will at the time of the signing by the witness.^* This is to prevent a surreptitious will from being substituted or imposed on the testator for the one he intended to make. In a legal sense the words "signed" and "subscribed" are synonymous, as used in connection with the execution of a will, therefore a subscribing witness to a will may sign by making his 2 9 Rev. St. 1845, p. 1079, c. 185, § 5; McGee v. Porter, 14 Mo. 611, 5.5 Am. Dec. 129 ; Northcutt v. Northcutt, 20 Mo. 266. 3owithinton v. Witliinton, 7 Mo. 589; Walton v. Keudrick, 122 Mo. 504, 27 S. W. 872, 25 L. R. A. 701. 31 Mays V. Mays, 114 Mo. 536, 21 S. W. 921; Morton v. Heidorn, 135 Mo.* 60S, 37 S. W. 504. 32 1 Redfield on Wills, 227. 33 1 Jarm. Wills, 72; 4 Kent, Com. 516; 2 Greenleaf on Evidence, 676; Cravens v. Faulconer, 28 Mo. 19; Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664. 34 Hughes v. Rader, 183 Mo. 702, 82 S. W. 32 ; Hach v. Rollins, 158 Mo. 190, 59 S. W. 232 ; Avaro v. Avaro, 235 Mo. 424, 138 S. W. 500. § 29 FORM AND MANNER OF MAKING WILLS 25 mark, or if he cannot write his hand may be guided by an- other. § 29. Competency of Attesting Witnesses. — At common law an interested party was not competent as a witness. Therefore attesting witnesses to wills who were interested either as devisees, legatees, executors or simply as creditor for whom some special provision was made, were incompe- tent. The will could not be probated unless, without their testimony, there was the proper number of disinterested witnesses. This rule has been modified by statute. In Mis- souri, if an attesting witness is interested in the will as a legatee or devisee, he may be admitted to prove the execu- tion of the will, but the devise or legacy to him will be void, except charges on lands for payment of debts, unless the will is attested by a sufficient number (two or more) of other, competent witnesses, in which case it will be valid. ^^ And if the witness would be entitled to any share of the testator's estate, by descent or distribution, if the will should not be established, it will be saved to him, not ex- ceeding the value of the bequest or devise made to him in the will, and he may recover it from the devisees* or legatees named in the will, in proportion to the parts devised and bequeathed to them. So if the witness has been paid, or has accepted or released, or refuses on tender to accept the bequest given to him by the will, he must be admitted to prove its execution. If such a witness dies in the life time of the testator, or before he receives or releases or refuses to receive or release or tender his legacy or bequest, he must be deemed a legal witness to the execution of the will. A witness who has released or received or refused to re- ceive his bequest, in order to his examination concerning the execution of the will, cannot demand or receive any profit or benefit from the estate or any bequest or compensation therefor of any person, except as above stated. If by the will real estate is charged with a debt, the creditor whose debt is so charged, being an attesting witness to the will, may be admitted to prove its execution. ^^ SB Rev. St. 1909, §§ 570-572 (inclusive) : Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664: Graliam v. O'Fallon, 4 Mo. 33S ; Hogan v. Ilinchey. 195 Mo. 527. 94 S. W. 522; Miltenberger v. Miltenberger, 78 Mo. 21. S6 Rev. St. 1909, §§ 573-577 (inclusive); Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664: Miltenberger v. Miltenberger, 78 Mo. 27. 26 FORM AND MANNER OF MAKING WILLS § 29 A mere executorship under the will is not a beneficial ap- pointment which interferes with the right of the executor to be a subscribing witness to the will, but if he, is a devisee or legatee he stands in the position of any other devisee or legatee who attests a will, and can be admitted to prove its execution on the same terms as such other witnesses." § 30. Attestation — Clause. — The attestation of the wit- nesses should be written and subscribed at the conclusion or end of the will, opposite or near the signature of the tes- tator. The simple signature of the witnesses is enough. It is not essential that the attestation clause should show upon its face that the witnesses subscribed in the presence of the testator. The witnesses will be permitted to prove that all the forms were in fact complied with, although the attestation clause is silent on the subject. ^^ It would be better, perhaps, to show on the face of the instrument, that all the statutory formalities have been complied with in its execution. It not only affords presumptive evidence of the facts, in case of the death or failure of the memory of the witnesses, but it also shows that the person who prepared the will knew what formalities were required, and tends to raise the presumption that he gave the testator and wit- nesses the necessary information in relation thereto. The importance of reading the whole will in the presence of the testator and witnesses, in case of a blind or illiterate per- son, to afford certain proof of the validity and identity of the instrument as the last will of the testator, will be apparent to every one. § 31. Care in Drafting Will. — In drafting a will great care should be taken to couch its provisions in plain, simple language, avoiding all technical terms, and doubtful phrase- ology and making such explanations as will avoid all un- certainty as to the particular person or property intended, or as to the nature and quantity of estate or interest in- tended. And, if it is the intention to adopt any paper or other extraneous matter as a part of the will, it should be referred to in such a manner as shall, with the aid of parol evidence properly admissible, leave no doubt of its identity. 3 7 Rev. St. 1900, § 570. 3 8 Murphy V. Murphy, 24 Mo. .526; Berlu'ret v. Berberet, i;}l Mo. 399, .33 S. W. Gl, .52 Am. St. Rep. 034 ; Avaro' v. Avaro, 2.35 Mo. 424, 138 S. W. 500; Lorts v. Wash, 175 Mo. loc. cit. 503, 75 S. W. 95; Craig V. Craig, 156 Mo. 358, 361, 56 S. W. 1097. § 31 FORM AND MANNER OF MAKING WILLS 27 It is the constant experience of those enj^aged in the settle- ment of estates, that much disappointment of the testator's expectations supervenes, in spite of all the efforts of the courts to prevent it, on account of the ignorance of the tes- tator in regard to the meaning, force and legal effect of the language employed in the will. A few forms are furnished, which may be useful as a general guide for drafting wills: I, R. It., of the County of in the State of aged years, being of sound mind, do make and publish this my last will and testament, as follows: 1. I reiiuest that my funeral be conducted under the direction of my beloved wife and in a manner suitable to my means and po- sition in life, and that a suitable monument or stone be placed by her to mark the linal resting place of my remains, the cost of which shall be considered as funeral expenses. And I direct that my fu- neral charges, the expenses of administering on my estate, and all my just debts, be paid out of my personal estate; and if that be in- sufticient, I expressly authorize my executor, hereinafter named, to sell, at public or private sale, the wliole or such part of my real estate, as may be sufticient for that purpose, fir.st selling the (designate what land shall be first sold.) 2. I give and bequeatli to my beloved wife, M.. the home place, or farm on which I now live, described as follows: , to hold aiid enjoy absolutely in fee simple, and the sum of dollars, to be received and accei)ted by her in lieu of dower, and of any dis- tributive share in my personal estate. I give to my niece, Mary J. Farmer, the sum of dollars. I give to Mariah Foster, my stepdaughter dollars, etc., etc. (After setting out all the specific devises or bequests, say:) All the rest, residue, and remainder of my estate, real and personal, I give, devise and beiiueath. to my children or their heirs, to be di- vided equally between them. I appoint my son, Henry, executor of this my will, revoking any former will by me made, and I authorize and empower my said ex- ecutor In the settlement of my estate and of any debts due me, to compromise such debts, and if he thinks it advantageous to my estate to accept in satisfaction less than the full amount thereof. In witness whereof, I have hereunto subscribed my name, this day of , 19—. The foregoing instrument was at the date thereof signed and de- clared by the said R. R. to be his last will and testament, in the presence of us, who. at his request and in his presence, and in the presence of each other, have subscribed our names as witues.ses thereto. A. B. of C. D. of E. F. of (Provision in a will creating as to residue of estate not specifically devised or beipieathed a life estate in wife and remainder to chil- dren and their descendants.) And lastly all the rest, residue and remainder of my estate what- soever, real, personal and mixed, and wherever situate, I give, de- 28 rOEM AND MANNEB OF MAKING WILL8 § 31 vise and betiueatli to my beloved wife, M. B.. to have and to bold for her natural life, and at her death to be divided equally between my children, or the descendants of such as shall not then be living, per stirpes and not per capita, to have and to hold to them and their heirs forever. The devise and bequest to my said wife is to be in lieu of dower, and of all her right of dower in any lands and tenements of which I may be seized during my marriage with said M. B. Another General Form of a Codicil to a Will, Where Several Legacies are Revoked Whereas I, A. B., of , have, by my last will and testament, in writing, duly executed, bearing date, etc., given and bequeathed to, etc.: Now I, the said A. B., do make this codicil to my said will, and I do hereby revoke the said legacies by my said will given to J. K. and L. M., and I do give to each of them, the said J. K. and L. M., the sum of dollars only, and I give unto, etc. And I do ratify and confirm my said will in everything except where the same is hereby revoked and altered as aforesaid. In witness, etc. ^- ^^ Signed and published by the said A. B. as and for a codicil to be added to and be considered as a part of his last will and testament, in the presence of us, who at his request and in his presence, and in the presence of each other, have subscribed our names hereto. J. K. L. M. N. O. 'A Nuncupative Will The following is the will of A. B., who was a mariner at sea, made on the , (or who was a soldier in the military service of the United States, etc.) and declared by him by word of mouth at the time of his last sickness, and immediately prior to his death, which occurred at six o'clock p. m. of the same day, in presence of us, who at the time of pronouncing the same were requested by the said testator to bear witness that such was his will, and who have subscribed our names as witnesses thereof: "My will is that my sister Ada shall have my gold ring, and that my brother John shall have my sword and military equipments, and that my dear old mother shall have all moneys and wages due me from the government, or from any person or persons whomsoever," etc. Which said will was reduced to writing by the said E. F. in pres- ence of the said C. D. and by us subscribed this day of . 19-. E. F. C. D. Another Form for a Nuncupative Will The unwritten and nuncupative last will and testament of A. J., deceased, pronounced on the day of , 19 — : "I give to my dear father and mother to be shared by them only, and for their mutual benefit, all my personal effects, moneys and § 31 FORM AND MANNER OF MAKING WILLS 29 wages due me from any source whatsoever, not otherwise disposed of by nie. I give my bay horse to my brother Charles, etc., etc." We, C. D. and E. F. do certify tliat tlie above and foregoing is the last will and testament of A. J., deceased; that we were pres- ent at the making thereof; that the said A. J. at the time of pro- nouncing the same, did re(iuest the said C. D. who was there pres- ent to bear witness that such was his will ; that said will was made at the time of the last sickness and at the dwelling house of the said deceased (or at the house of G. H. whore he had been residing for the space of ten days or more, or at the house of — • where he was taken sick, and died before his return home.) Which said will was reduced to writing by the said C. D. in presence of the said E. F. and bv us subscribed, this day of , 19 — . C. D. E. F. 30 DISINHERITING WIFE OR CHILD § 32 CHAPTER III DISINHERITING WIFE OR CHILD § 32. Disinheriting wife or child. 33. Same — Estate must be devised or bequeathed. 34. Child not disinherited unless named or provided for. 35. Same. 36. Same — How named. 37. Same. 38. Effect of such omission on the will. 39. Same — Rights of child omitted in the estate. 40. Agreement to dispose of property by will. § 32. Disinheriting. — In Missouri the wife has an in- choate interest in the real estate of her husband, called dower and homestead, which is vested on his death, and which she cannot be deprived of by his will, or his convey- ance in which she does not join.^ But she has no such right or interest in his personal estate. He can sell or give it away without her consent, passing a good title, to the very last moment of his life. He can bequeath by will particular ar- ticles of personal property clear of all claims of his widow, and can dispose of all his personal estate save what the stat- ute expressly gives to the widow. ^ At the moment of his death, when the will takes efifect, the law also vests the ti- tle to certain articles of property in the widow, therefore the will does not, and cannot, deprive her of the articles al- lowed by law as the absolute property of the widow. ^ If a bequest is made in lieu of the widow's statutory rights in the personal property of her deceased husband, the will should so state in specific language.* Blackstone says, that by the common law as it stood at late as Edward III, a man could not deprive his widow of the one-third of his personal estate, or his children of 1 Rev. St. 1909, § 6704 ; Rev. St. 1909, § 367 ; Gladney v. Berkley, 75 Mo. App. 98 ; Bogart v. Bogart, 138 Mo. 419, 40 S. W. 91 ; Mills V. Mills, 141 Mo. 195, 42 S. W. 709; Newton v. Newton, 162 Mo. 173, 61 S. W. 881; Hall v. Smith, 103 Mo. 289, 15 S. W. 621; Chouteau V. Missouri Pac. Ry. Co., 122 Mo. 375, 22 S. W. 458; In re Fergu- son's Estate, 206 Mo. 203, 104 S. W. 108. 2 Brandon v. Dawson, 51 Mo. App. 237. 3 Rev. St. 1909, §§ 114-116 ; Glenn v. Gunn, 88 Mo. App' 442 ; Ilas- enritter v. Hasenritter, 77 Mo. 162. 4 Ellis V. Ellis, 119 Mo. App. 63, 90 S. W. 260. § 33 DISINHERITING WIFE OR CHILD 31 another third, but this law has been altered by imper- ceptible degrees, and the deceased may now by will be- queath the whole of his goods and chattels though we can- not trace out when first this alteration began."' If the parent die intestate his children succeed to his property un- der the law, but they have no right to it, either vested or contingent, which they may not be deprived of by will. The right is absolute to dispose of all of one's property ex- cept that which the law secures to the widow, and the por- tion required to pay debts and expenses of administration. It follows then, that a person competent to make a will may entirely disinherit his children, and his motives for such an act cannot be called in question. Nor is the hardship of the case of any weight, further than as a circumstance to be considered in connection with other evidence tending to show insanity or other mental defect in the testator.'^ § 33. Same. — But in order to disinherit or cut off an heir at law, the estate must be bequeathed expressly, or by fair implication to some other person competent to take and hold by de\ise." It is not sufficient to declare by the will that such heir shall not have any portion of the estate, leav- ing it to descend to others under the law. And a bequest to the wife or child of such portion of the estate as the law gives to her or it. and nothing more or diff'crent, is void, and such party takes under the law. That is, when the will devises precisely the same estate to the heir at law that he would take by descent, his title by descent will have pre- cedence over his title by devise.* * And in such case the widow may renounce the will and hold the property under B 2 Black. Com. 492 ; Williams on Per. Prop. 250. 6 Maddox v. Maddox, 114 Mo. 35. 21 S. W. 499, 35 Am. St. Rep. 734; McFadin v. Catron. 120 Mo. 252. .55 S. W. 506; Kiggin v. Board of Trustees of Westminster College, IGO Mo. 570, 61 S. W. S03. - Hurst V. Yon de Yeld, 1.58 Mo. 2.39, 5S S. W. 1056. 8 Davidson v. Koehler, 76 Ind. 39S. *A somewhat different conclusion is reached in the case of Ball V. Ball, 165 Mo. 312, loc cit. 327, 65 S. W. 552. 555, where the court says: "In order to deprive the widow of her homestead rights, she must have accepted imder the will of her deceased husband property gi'eater in amount than that to which she would otherwise have been entitled by law (Burgess v. Bowles. 99 Mo. 550 [12 S. W. 341, 13 S. W. 991) or the intention to exclude these rights is manifest from the provisions of the will ; otherwise she can claim both the benefits given her bj' the law and will." 32 DISINHERITING WIFE OR CHILD § 34 the law. But if the testator devise any real estate to his wife, it will stand in lieu of her dower in the real estate of which he dies seized, unless it be otherwise declared by the will.® And in such case she will not be entitled to dower in his real estate unless she refuse to accept the pro- vision made for her by the will, within the time and in the manner prescribed by statute.^" No formal acceptance is necessary in order to take under the will, and after having once elected to take under the will, she may renounce the will within twelve months and take under the law.^^ § 34. Child not Disinherited unless Mentioned in the Will. — Ordinarily a child is disinherited if the parent be- queath all his estate to some other person, notwithstanding such child may not be mentioned or provided for in the will. But we have a statute in Missouri which declares that, "If any person make his last will, and die leaving a child or children, or descendants of such child or children, in case of their death not named or provided for in such will, al- though born after the making of such will, or the death of the testator, every such testator, so far as shall regard any such child or children, or their descendants, not provided for, shall be deemed to die intestate; and such child or chil- dren, or their descendants, shall be entitled to such propor- tion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them; and all the other heirs, devisees and legatees shall refund their proportional part." But if such omitted per- sons have received their equal proportion, with other chil- dren, of the estate in the testator's life time, by way of ad- vancement, they will not be entitled to any thing more by virtue of the statute. ^^ § 35. Same. — "This provision of the statute," says the Supreme Court of Missouri, "has been several times before this court for judicial construction and it may now be con- 9 Register v. Hensley, 70 Mo. 189. 10 Rev. St. 1909, §§ 360, .361; Kaes v. Gross, 92 Mo. 647, 3 S. W. 840, 1 Am. St. Kep. 767 ; Young v. Boardman, 97 Mo. 181, 10 S. W. 48 ; Schorr v, Etling, 124 Mo. 42, 27 S. W. 395 ; Dougherty v. Barnes, 64 Mo. 159 ; Bogart v. Bogart, 138 Mo. 419, 40 S. W. 91 ; McKee v. Stuckey, 181 Mo. 719, 81 S. W. 100; post, § 120. 11 Register v. Hensley, 70 Mo. 189; Lilly v. Menke, 143 Mo. 137, 44 S. W. 730 ; Bretz v. INIatney, 00 Mo. 444. 12 Rev. St. 1909, §§ 544, 545; Thomas v. Black, 113 Mo. 00, 20 S. W. 657 ; Woods v. Drake, 135 Mo. 393, 37 S. W. 109. § 36 DISINHERITING WIFE OR CHILD 33 sidered as settled that the object of it is to produce an in- testacy only when the child or the descendant of such child is unknown or forgotten, and thus unintentionally omitted; and the presumption that its omission is unintentional may be rebutted when the tenor of the will or any part of it in- dicates that the child or grandchild was not forgotten." The statute extends only to a case of entire omission, and the mention of a child without a legacy or other- provision for him is sufficient to cut him off from a distributive share of the estate; ^* and whenever the mention of one person, by a natural association of ideas, suggests another, it may reasonably be inferred that the latter was in the mind of the testator and was not forgotten or unintentionally omit- ted. Thus it has been decided that by the mention of a daughter, though dead at the time of making the will, it will be inferred that her children were not forgotten. ^^ The mention of grandchildren will exclude the parent.^" Nam- ing a son-in-law is sufficient to show the daughter was brought to the recollection of the testator; and naming two grandchildren will indicate that their brothers and sis- ters not named were intentionally omitted.^' § 36. Same. — The decision from which we have taken the above extract decides, on the authority of the cases cited in it, that a bequest to a son-in-law% though he is not designated as such, is a naming of the daughter within the statute. ^^ This case, and the principles enunciated b}^ it, as will be seen by the examples given, rest upon the de- cisions of the Massachusetts court, made upon a statute which had this additional provision in it, viz. : "Unless it shall appear that such omission was intentional and not oc- casioned by any mistake or accident." ^" Decisions founded upon a statute so different from ours cannot with much propriety be invoked as authority for its construction. The statute of Missouri is positive in its terms — nothing is said in it about the omission being intentional and not occasioned 1 3 Guitar v. Gordon, 17 Mo. 40S ; Beck v. Metz, 25 Mo. 70 ; Woods y. Drake, 135 Mo. :i93, 37 S. W. 109 ; Block v. Block, 3 Mo. 594. 14 Block V. Block, 3 Mo. 594. IB Guitar v. Gordon, 17 Mo. 408. 18 Woods V. Drake, 135 Mo. 393, 37 S. W. 109; Willard v. Darrah, IGS Mo. 6no. OS S. W. 1023, 90 Am. St Rep. 4GS. 17 Hockensiuith v. SUisber, 2G Mo. 237. 18 Hockensmith v, Slusher, 26 Mo. 237. 19 Wilson V. Fosket, G Mete. (Mass.) 404, 39 Am. Dec. 736. KEI..M0.P.G.— 3 34 DISINHERITING WIFE OR CHILD § 37 by accident or mistake. If the name of the child is omitted in the will and no provision be made for it, the testator shall as to such child "be deemed to die intestate," and whether the omission was intentional or otherwise — whether the testator did or did not have the child in his mind cannot under a fair construction of the statute affect, in the least, the right of the child to a distributive share of the estate. The only thing that can in such case preclude the omitted child is an advancement to it by the testator in his life of an equal share. And although the child may be disinherited by the terms of the will, yet unless the prop- erty of the testator be disposed of to other persons or ob- jects, such disinherited child will take by descent the prop- erty or its share of the property remaining undisposed of by the will.-*' § 37. Same.— Making a bequest to a son-in-law, not named as such, is not naming the daughter, although it might, perhaps, be regarded as a provision for her. To say that the son-in-law should have no part of his estate would not necessarily exclude the daughter. And the chil- dren are not excluded as mentioned in the will, when the wife is made sole heir to all the testator's property to the exclusion of every other person or persons.-^ But making mention of a child not by name, but as "our child," in con- nection with a bequest to the wife, the testator having but one child, was regarded as naming the child within the meaning of the statute.-^ To cut a child out the will must show on its face that the testator remembered him; he need not be named ;-^ but unless he is named or alluded to in such manner as to show he was in the testator'5 mind, the presumption is conclusive that he was forgotten.^* It cannot be shown by parol evi- dence that the child was not forgotten.-^ Naming children as a class, without further description, includes all who answer that description at the time the will takes effect.'''*^ 20 Hurst V. Von de VeW. 158 Mo. 2.39, 58 S. W. 1056. 21 Bradley v. Bradley, 24 Mo. 311; Hargadiiie v. Pulte, 27 Mo. 423. 22 Beck V. Metz, 25 Mo. 70. 23 I'ouuds V. Dale, 48 Mo. 270. 24 Wetherall v. Harris, 51 Mo. 65. 2 5 Thomas v. P.lack, 113 Mo. 66, 20 S. W. 657. 26 Allen V. Claybrook, 58 Mo. 124 ; Beck v. Metz, 25 Mo. 70. § 40 DISINHERITING WIFE OR CHILD 35 § 38. Effect of Such Omission on the Will.— The omis- sion to name or provide for a child or grandchild does not necessarily invalidate the will ; for it may be shown, if such be the fact, by evidence aliunde that the omitted child was provided for in the lifetime of the testator by an advance- ment equal to its full share of the estate, or the child may renounce, or never assert its right against the will, and in every such case, the testament will stand and the title passed by it must remain in the devisee or legatee.-' The will is not void, but, like the deed of an infant, voidable, and can only be avoided by the parties — children, injuri- ously affected by it. It is valid and conclusive as against strangers and third persons, and will pass a title to the dev- isee though a defeasible one, as against the children. § 39. Same — Right of Child. — If a person die intestate leaving children, they are entitled to the whole of his estate subject to the widow's dower and homestead, therefore if he makes a will, and does not name or provide for any of them, he will as to them "be deemed to die intestate," and the whole estate will descend to them and in case of the death of an unnamed child, the share of such child descends to his heirs, -^ and they may maintain ejectment for the land, to which they are entitled in right of their ancestor, the same as if there w-as no will. But if all the children are not omitted — some are named or provided for, and others not — the legacies and devises cannot be treated as nullities, but the legatees and devisees would be bound to refund or contribute their proportionate parts, necessary to make for the omitted children a share equal to that which they would have been entitled to in the estate, if there had been no will. It seems that partition would be a proper remedy in such a case, and resort might be had to the court by petition for contribution in which advancements may be adjusted.-'* § 40. Agreement to Dispose of Property by Will. — If made upon sufficient consideration, an agreement to dis- pose of property by will in a particular way is binding, and if the contract be oral, part performance of it will take it 27Chouquette v. Barada, 23 Mo. 331; Id., 28 Mo. 401. 2 8 Sc'hueider v. Koester, 54 Mo. 500. 20 Rev. St. lOtm, §§ 545, 5S2 ; Thomas v. Black, 113 Mo. 66, 20 S. W. G57; Woods v. Drake, 135 Mo. 393, 37 S. W. 109; Breideii- stein V. Bertram, 19S Mo. 328, 95 S. W. 828; Story v. Story, 188 Mo. 110, 86 S. W. 225. 36 DISIXHERITING WIFE OR CHILD § 40 out of the statute of frauds, when a refusal to perform it would work a fraud on the other party.^" But in such case the injured party would be compelled to resort to a pro- ceeding in equity, by which proper relief might be ob- tained. ^^ But an intention to dispose of property by will, which for any reason fails, cannot be enforced. ^^ 3 Fuchs V. Fuchs. 48 Mo. App. IS; Gupton v. Gupton, 47 Mo. .S7; Sutton V. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107. 31 Fuchs V. Fuchs, 48 Mo. App. 18; Teats v. Flanders, 118 Mo. mo, 24 S. W. 126. 32 Anderson v. Scott, 94 Mo. 637, 8 S. W. 235 ; Brownlee v. Fen- wick, 103 Mo. 420, 15 S. W. 611 ; In re Soulard's Estate, 141 Mo. 642, 43 S. W. 617. § 41 NUNCUPATIVE OB UNWRITTEN WILLS 37 CHAPTER IV OF NUNCUPATIVE OR UNWRITTEN WILLS § 41. Nuncupative will — When allowed. 42. Same — In Missouri. 43. Same — By mariner or soldier. 44. Gift causa mortis and inter vivos. § 41. A Nuncupative Will is when the testator, without any writin^^, doth declare his will before a sufficient num- ber of witnesses.^ At common law such a will was suffi- cient for the disposal of personal estate, but was void as to real estate. In ignorant ages there was no other way of making a will than by words or signs. But by the time of Henry the VHI, and especially in the age of Elizabeth and James, letters had become so generally cultivated, and reading and writing so widely diffused, that verbal, un- written, or nuncupative wills were confined to extreme cases, and held to be justified only on the plea of necessi- ty.* Such wills were found to be liable to great frauds and impositions, and the occasion of fearful perjuries, conse- quently the statute of frauds laid them under many restric- tions, except when made by "any soldier being in actual military service, or any mariner or seaman being at sea." Afterward by the new statute of wills,^ nuncupative wills, except wills of mariners and soldiers, were altogether ren- dered invalid in England. This latter statute has been fol- lowed in New York, and perhaps in a few^ other states, but the great majority of American states adhere to the for- mer, of which the Missouri statute is almost a literal tran- script.* Blackstone says: "The testamentary words must be spoken wath an intent to bequeath, not any loose idle dis- course in his illness; for he must require the bystanders to bear witness to his intention ; the will must be made at home or among his family or friends, unless by unavoida- ble accident; to prevent imposition from strangers, it must 1 1 Williams on Ex'rs, 101. 2 4 Kent, 633. 8 1 Vict. c. 26. * Rev. St. 1909, §§ 559-562 (inclusive). 38 NUNCUPATIVE OR UNWRITTEN WILLS § 42 be his last sickness ; it must not be proved at too long a distance from the testator's death, lest the words should escape the memory of the witnesses, nor yet too hastily, and without notice, lest the family of the testator should be put to inconvenience or be surprised." ° § 42. Same. — The same ingredients are required in a nuncupative will under the Missouri statute. The estate bequeathed cannot exceed the value of two hundred dol- lars ; the will must be proved by two witnesses who were present when it was made ; the testator must request some one present to bear witness that such is his will ; it must be made at the time of the last sickness, at his dwelling house, or where he has resided for ten days or more, ex- cept, where he is taken sick from home and dies before his return ; *' it must be proved within six months, or the sub- stance of the words must be reduced to writing within thirty days after they were spoken ; it must be reduced to writing, and the widow or next of kin must be furnished a copy, and be called by citation to contest the probate, which cannot be granted until fourteen days after the death of the testator.^ In New York, under a similar statute, the words "last sickness" were construed to mean last extremi- ty.^ The witnesses to such a will must be competent to testify on a trial at law. It is not necessary that all, or the exact words of the testator should be reduced to writing, the substance of the words is all that is required, and if an independent part of them should be omitted in writing them, the residue may be good, or if the two witnesses do not agree, as to all the bequests, it is good so far as they do agree, and no farther. § 43. Same — A Mariner at Sea, or Soldier in the mili- tary service may dispose of his wages or personal property as he could at common law, or by reducing his will to writing.'' "Actual military service," is the phrase used in the English statute. Under it the privilege was confined to those who were at the time on an expedition, and did not extend to a soldier who was quartered in barracks. But 6 2 Blackst. Com. 501. e Rev. St. 1909, § .5.59. 7 Rev. St. 1909, §§ 561, 562. 8 Prince v. Hazelton, 20 Johns. (N. T.) .502, 11 Am. Dec. 307. 9 Rev. St. 1909, § 5G0. § 44 NUNCUPATIVE OR UNWRITTEN WILLS 30 under our statute, which omits the word actual, it is be- lieved that any soldier who is at the time in the military service, whether in barracks or in the field, may make a nuncupative will. The term "mariner at sea" has been held to include the whole service, officers and common seamen, alike, whether in service of a man-of-war or a merchant vessel. And it has been also held that the words "any mariner, or soldier, in the military service," includes a minor, if he be a soldier or seaman.^** At common law no particular number of witnesses is re- quired, nor any "other ceremonies as to publication or at- testation. But it must be shown that the testator was of sound mind and that he intended at the time to make a testamentary disposition of his property. The factum of a nuncupative will, it has been said, must be proved in every particular, by evidence more strict and stringent than that of a written one, and the statute in relation to it must be strictly construed and fully complied with, in con- sequence of the faculties with which fraud may be perpe- trated in setting up such a will. § 44. A Gift Causa Mortis and a Gift Inter Vivos have some points of similarity, but differ in some respects from a nuncupative will ; the gift causa must be made by the donor in his last illness and in contemplation and expecta- tion of death ; the other is a gift by which the possession and title to personal property passes immediately and ir- revocably to the donee, dependent upon no condition in the future." By reference to the statute defining or providing for a nuncupative will, it will be readily seen that many qualifications and conditions enter into it, that are not es- sentiai to either form of gift mentioned, and the proof must bring the facts within the provisions of the statute. A gift, to take effect at the death of the donor, not good as a gift causa mortis, is not valid as a nuncupative will.^^ 10 1 Williams on Ex"rs, 102. iiTygard v. McCdiiib. 54 Mo. App. 85; Ells v. Missouri Pac. Ry. Co.. 40 Mo. App. 165; Standiford v. Standiford, 97 Mo. 2.31, 10 S. W. 8.36, 3 L. R. A. 290; Siieatheu v. Suoatheu, 104 Mo. 201, 16 S. W. 497, 24 Am. St. Rep. 326. 12 Dunn V. German-American Bank, 109 Mo. 90, 18 S. W. 1139; Godard v. Conrad, 125 Mo. App. 105, 101 S. W. 1108; Tygard v. Mc- Comb, 54 Mo. App. 85. 40 NUNCUPATIVE OR UNWRITTEN WILLS § 44 The essential element of a valid gift causa mortis is de- livery of the chattel in the lifetime of the donor; if the donor die the gift becomes absolute ; if he live it is revoca- ble. Delivery is also the essential element of a valid gift inter vivos, without reserving the power of revocation. Delivery distinguishes a gift causa mortis from a nuncupa- tive will, for if there be not actual, nor constructive, deliv- ery and change of possession in the lifetime of the donor, the transaction must be supported, if at all, as a verbal will." isTygard v. McComb. 54 Mo. App. 85; Borland on Wills, § 19. § 46 THE REVOCATION Or WILLS 41 CHAPTER V OF THE KEVOCATION OF WILLS § 45. General methods of revoking. 46. Revocation by a subswiueut will. 47. Same — Does not revive former will. 48. Same — When not revoked. 49. Same— Of lost will. 50. By buruinff, cauceling, tearing or obliterating. 51. Same — The act and intention. 52. Same — Of sonnd mind of testator. 53. Same — Presumptions as to revocation. 54. Same — How effected by destruction, etc. 55. By marriage. 56. By marriage and issue. 57. Same — Implied by alienation of the estate. 58. Same — Not effected by contract or incumbrance by testator. § 45. General Methods. — A will is always a revocable instrument during the life of the testator. He may revoke it at his pleasure, even should the will be declared irrev- ocable in the strongest and most positive terms, because a man cannot by any act of his own make that irrevocable which in the judgment of the law is in its very nature rev- ocable.^ But a will duly executed must be revoked by an instrument of equal solemnity, or by some positive act by the testator which clearly evinces his intention to revoke or destroy it, or by certain changes in the testator's situa- tion in life, as marriage. Under the statute of IMissouri,- there are different modes of revoking a will in writing, viz. : 1. By a subsequent will in writing. 2. By burning, canceling, tearing or obliterating the same by the testator or in his presence, and by his consent and direction. 3. By marriage, or by marriage and issue. 4. Implied revocation by alienation of the estate. We shall now proceed to treat briefly of each of these in their order. § 46. Revocation by a Subsequent Will. — The making of a will is a voluntary act of the testator which he may re- 1 4 Kent, Com. 638 ; 1 Williams on Ex'rs, 109 ; Cozzens v. Jami- son. 12 Mo. App. 452: Bower v. Daniel, 198 Mo. 289, 95 S. W. 347. 2 Rev. St. 1009. §§ .5.^S-54.3. 42 THE REVOCATION OF WILLS § 46 peat as often as he pleases. But no man can die with two testaments — the last and newest is of force — so that if there were a thousand wills the last of all is the best. But the mere fact of making a subsequent will does not necessarily revoke a prior one.^ Any number of instru- ments, whatever be their relative dates, if duly executed and not inconsistent with each other, may be admitted to probate as together constituting the last will of the de- ceased. If, however, the latter will expressly revoke a for- mer, or the two be incapable of standing together, the first must be rejected, and the latter received. But if a subse- quent will be partially inconsistent with one of an earlier date, the latter will revoke the former only as to the points in which they are inconsistent. If the subsequent will make a full disposition of the whole estate whether wholly or partially incompatible with a former will, it is a revocation of such prior will in toto, unless it appears from the instru- ment itself that it was the intention of the testator that they should stand together. The subsequent will, or rev- ocatory instrument must be duly and regularly executed in accordance with the provisions of the statute, in order to defeat the former will.'* The general principle is, that bequests are prima facie to be taken cumulatively, where they are on separate instruments, unless the latter is rev- ocatory of the former,^ § 47. Same — Does not Revive Former Will. — It was long a vexata questio whether on the revocation of a later will, a former uncanceled will should revive or not.** At com- mon law, the cancellation of the latter will would revive the former. But the question is settled against such presump- tive revivor by statute, which enacts, that if, after the mak- ing any will, the testator shall duly make and execute a sec- ond will, the destruction, canceling or revocation of such second will shall not revive the first will, unless it appear by the terms of such revocation, that it was his intention to 3 Odenwaelder v. Schorr, 8 Mo. App. 458. 4 West V. West, 144 Mo. 119, 46 S. W. 139 ; Caeman v. Van Harke, 33 Kan. .333, 6 Pac. 620; Thompson v. Ish, 99 Mo. loc. cit. 171, 12 S. W. 512, 17 Am. St. Rep. 5.52; Lindsey v. Stephens, 229 Mo. 600, 129 S. W. 641. 5 Fosdick V. Sturges, 3 Phila. (Pa.) 313, Fed. Cas. No. 4,956. 6 Goodright v. Glazier, 4 Burr. 2512 ; Miller v. Lehman, 1 Phila. (Pa.) 406; 1 Williams on Ex'rs, 153, pt. 1. § 49 THE REVOCATION OF WILLS 43 revive and give effect to the first will, or unless it shall duly republish his first will.'^ It has been held in New York, under a similar statute, that no declarations of the testator are competent evidence on the question of revocation, except those which accom- pany the act of revocation, and are a part of res gesta.^ Nor is parol evidence admissible to show that it was the inten- tion of the testator to revive the former by the destruction of the latter, which contained a clause revoking all former wills.» § 48. Same — Not Revoked. — It is the due execution of a subsequent will that causes a revocation of a prior one, therefore, if the subsequent will is inoperative from defect of execution or attestation, or any other cause, the original will remains in force; so that where the act of revoking a will is connected with the making of another, so as to show that the testator meant the revocation of the old to depend upon the efficacy of the new will, and the new one proves ineft'ectual for the purpose intended, by reason of defects, or irregularity in its execution, also fails, and the original will continues in force. This rule is confined within very narrow limits and the intention of the testator not to leave himself without a w'ill must appear by clear and positive testimony. But a will deliberately canceled without ac- cident or mistake, is revoked, though the testator intends afterward to make a new one, but omits to do so.^"^ The rule in nearly all the states is, that no will can be revoked by any other writing, unless the instrument of revocation is executed with the formalities required for the valid ex- ecution of a will,^^ but there are some exceptions to this rule, for in some states it may be revoked by any writing signed by the testator declaring the same to be revoked. § 49. Same — Lost Will. — If a duly executed will has been lost or misplaced so that it cannot be actually de- stroyed or revoked by cancellation, the testator may, if he 7 Rev. St. 1900. § 543 ; Beaumont v. Koim, 50 Mo. 2S ; Banks v. Banks, 65 Mo. 4.32. 8 Waterman v. Whitney, 1 Kern (11 N. Y.) 157, per Selden, J. ; Kuukle V. Gates, 11 Ind. 1)5 ; West v. West, 144 Mo. 119, 46 S. W. 139. Beaumont v. Keim, 50 Mo. 2S. 10 Banks v. Banks, 65 Mo. 432; Varnon v. Varnon, 67 Mo. App. 534. 11 West V. West, 144 Mo. 119, 46 S. W. 1.39; Spoonemore v. Cables, 66 Mo. 579; Caeman v. Van Harke, 33 Kan. 333, 6 Tac. 620. 44 THE REVOCATION OF WILLS § 50 prefers to die intestate, execute an instrument with the same formahties that are required by law for the execu- tion of a will, declaring expressly the revocation of all for- mer wills or codicils by him made. If the revocatory will has been lost or destroyed so that its contents cannot be sufficiently proven to admit it to probate, yet it may be shown that it revoked the former will and defeat its pro- bate.^'^ As the republication of a will is equivalent to the making of a new will, such republication will revoke any will intermediate to the original date of the prior will and of its republication. § 50. By Burning; Canceling, Tearing or Obliterating. — To effect a revocation of a will there must be a concurrence of action and intention. The mere act of burning or tearing or canceling, is nothing, unless it be done animo revocandi — with the intent and for the purpose of revoking the in- strument.^^ Thus, if a man should throw ink on his will instead of sand, though it might be a complete defacing of the instrument, it would be no revocation, or, if a man hav- ing two wills of different dates, should direct the former to be destroyed, and by mistake the person directed should cancel the latter, such an act would be no revocation of the latter will. A cancellation, therefore, through accident or mistake, will be ineffectual to revoke a will.^* The revocation may be of the whole will or of a part only. If the testator tear off his signature at the end of the will, or cut it out, or obliterate it, it will be inferred that he in- tended thereby to revoke the whole will. So if the names of the attesting witnesses should be taken away by the testator, animo revocandi, it would be a good revocation of the will. It is not necessary that the instrument itself should be actually consumed or torn to pieces; the signa- tures being essential to the execution of the instrument, their destruction or obliteration would seem to be sufficient to revoke it. If the testator obliterate only a particular clause, or por- tion of his will, it operates as a revocation only pro tanto. So if part of one sheet of a will consisting of several sheets, be torn off or cut through, leaving the remainder of the will 12 Wallis V. Wallis, 114 Mass. 510. 13 Banks v. Banks, 65 Mo. 432. 14 Mann v. Balfour, 187 Mo. 290, 86 S. W. 103 ; West v. West, 144 Mo. 119, 46 S. W. 1.39. § 51 THE REVOCATION OF WILLS 45 in its original state, this would only revoke the part ac- tually cut or torn.^^ But when a revocation is made with a view to an immediate, other and different disposition, the revocation depends on the efficiency of such other disposi- tion, so where the testator tore a page out of his will in- tending to substitute another dift'ering from the one torn out, and which failed to become a part of the will because the instrument was not properly re-executed, it was held that the page torn out remained a part of the original will/® The presumption of the law is, that obliterations, etc., made after the will are done animo revocandi, but this presump- tion may be repelled by evidence showing that the animus did not exist. The words "burning, tearing, canceling or obliterating" are used in the Statute of Frauds in declaring the means whereby a will may be revoked. They were copied into the Missouri statute. The later English Statute of Wills, the 1st Victoria, has, however, changed the language to "burning, tearing or othemnse destroying," and this word- ing is copied in the statutes of some American States. The latter wording, by omitting the word "canceling" and in- serting "or othcrzvise destroying," seems to preclude the method of cancelmg at least so far as a partial revocation, or the cancellation of part only, of the will is concerned. § 51. Same — The Act and Intention. — As the destruc- tion or obliteration of a will, without the intention, will not revoke it, neither will the intention without the act be suf- ficient to do so. But if the intention to revoke the will is apparent, the act of obliteration will carry the intention into effect, although the instrument may not be literally de- stroyed, provided the testator completed all he intended to do. But if the intention is changed before the destruction or cancellation is completed, the partial destruction will be disregarded and the instrument held still in force. Any act of spoliation or destruction, done upon the instrument by the testator with intent thereby to destroy its legal ex- istence as a testament, amounts to what the law terms can- cellation. The act may be very slight, such as partially tearing, or crumpling it up and throwing it on the tire, though it were privately rescued and saved by another per- 16 Varnon v. Varnou, 07 Mo. App. 534. 16 Varnou v. Varnon, G7 Mo. App. 534; Banks v. Banks, 65 Mo. 432; Bigelow v. Gillott, 123 Mass. 103, 25 Am. Rep. 32. 46 THE EEVOCATION OF WILLS § 52 son. A partial burning of the paper, though ever so slight, is a sufificient revocation, or drawing lines across it.^^ But the act must be done and not merely intended. Neither the intention of the testator to destroy his will, nor his belief that it has been done, will defeat the instrument, if in fact it be preserved. Thus, where the testator be- ing blind, directed another person to destroy his will, and being told that it was destroyed, believed it, whereas in fact it was deceitfully preserved entire by that person, no act having been done towards destroying it, this was held no revocation. ^^ The intention to revoke a will is utterly inoperative unless there be some act done in pur- suance of that intention, and such act must be one of revoca- tion within the requirements of the statute.^'' § 52. Same — Sound Mind. — It requires the same ca- pacity to revoke a will, as to make one.-** So where a com- petent testator makes a will, which is afterward destroyed by his consent, or even by his own hand, it will not amount to a revocation in law, unless he had at the time sufficient capacity to understand the nature and efifect of the act, and performed it, or directed it to be performed, freely and vol- untarily with the intent to efifect a revocation. ^^ If a will has been improperly destroyed, it may be established by proof of its contents. ^- § 53. Same — Presumption. — If a testator execute a will and it is not found at the time of his decease, the presump- tion is that he destroyed it animo revocandi,-^ and es- pecially, if the will remained in his possession all the time. This, however, is only a presumption of fact, and may be repelled by contrary proof, and the will established. The same doctrine applies to the case of a mutilation or defacing of a will, which upon the death of the testator is found among his repositories. Such acts are presumed to have been done by the testator himself, and to have been done 17 Spoonemore v. Cables, 66 Mo. 579. IS Buy d V. Cook, 3 Leigh (Va.) 32; Giles' Heirs v. Giles' Ex'rs, 1 N. C. 377. 19 Jaruian on Wills, c. 7, § 2. 20 Schaff V. Peters, 111 Mo. App. 447, 90 S. W. 1037. 21 SchafE V. Peters, 111 Mo. App. 447, 90 S. W. 1037. 22 Dickey v. Malachi, 6 Mo. 177, 34 Am. Dec. 130; Varnon v. Var- non, 67 Mo. App. 534; Mann v. Balfour, 187 Mo. 290, 86 S. W. 103. 2 3 Mann v. Balfour, 187 Mo. 290, 86 S. W. 103. § 56 THE REVOCATION OF WILLS 47 animo revocandi.-* When questions arise upon revoca- tions, such as burning-, tearing, canceling, etc., they must be proved as other matters of fact. § 54. Same — To Effect a Revocation of the instrument, the burning, tearing, etc., must be done by the testator him- self, or i)i his presence and by his consent and direction; therefore, if he should not be present at the burning, or it should be done without his direction and consent, the will is not thereby revoked. In the revocation of a will the statute must be substantially, if not strictly complied with.-" § 55. By Marriage. — The presumption that a man has changed his testamentary disposition of property, does not arise by lapse of time, nor from subsequent insanity or im- becility of the testator, nor by the accumulation of wealth, nor by the prejudice it may occasion to^ parties to whom the estate would go in the case of intestacy. But marriage of the testator and birth of a child, when both events occur subsequent to the making of the will, have always been re- garded as an implied, or presumed revocation of the will, upon the ground of supposed change of intention with the change of condition of the testator, by which he assumed new moral obligations.^*' Neither marriage alone, nor the birth of a child alone has this effect; both these circum- stances must concur.-^ But the marriage of a single wo- man operated as a revocation of her will, because the mat- rimonial relation took away her power to make a will, and thus the nature of the instrument would be destroyed by its ceasing to be ambulatory. This reason would not apply in jMissouri, for a married woman may make a will here. But it is expressly enacted by the statute in Missouri that a will, executed by an unmarried woman, shall be deemed revoked by her subsequent marriage.-** § 56. Marriage and Issue. — This whole subject is now generally regulated everywhere by statute and placed be- yond the reach of astute discrimination and speculation. 24 Sohouler on Wills. § 401; r.orlaud on Wills, § 22; Odeuwaelder V. Schorr, 8 Mo. App. 458. 2 5 West V. West, 144 .AIo. 119. 46 S. W. i:!9; Banks v. Banks, 65 Mo. 4:52 ; Mann v. Balfour, 1S7 Mo. 290, SO S. W. 103. 2G Brush V. Wilkins, 4 Johns. Ch. (N. Y.) 506; Havens v. Van Den Burgh, 1 Denio (N. Y.) 27. 2 7 Rev. St. 1909, § 539. 2 s Rev. St. 1900, § 540. 48 THE REVOCATION OF WILLS § 56 Thus, it is enacted in Missouri, "that if, after making a will, disposing of the whole estate of the testator, such testator shall marry and die, leaving issue by such marriage living at the time of his death, or shall leave issue of such mar- riage, born to him after his death, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue be provided for in the will ; and no evidence shall be received to rebut the presumption of such revocation.-'' It will be seen that marriage alone is not, as to the wife, a revocation of the will, although the whole estate may be disposed of, and no provision be made for her; because the widow has always under the law a right of dower which she cannot be deprived of by the will, and which it is proper to suppose the testator was aware of in making his will. But marriage and birth of a child subsequent to the execution of the will, the whole estate being disposed of, and there being no settlement or provision made for such child, is an absolute revocation of the whole will, under the statute. If the will be made after the marriage, the subsequent birth of a child will not revoke the will in toto, but only pro tanto, and not to that extent if such child be expressly pro- vided for or even mentioned in the will.^*' For, as we have stated elsewhere, there is no doubt that the testator may, if he please, devise all his estate to strangers, and disinherit his children. ^^ § 57. Same — Implied Revocation by Alienation of the Estate. — There is an implied revocation in the nature of ademption, which arises either when the subject of the be- quest is altered or parted with by the testator, or when the purpose for which it was beqvieathed has been provided for by him by other means. It must be remembered that a will speaks of the testator's affairs at the time of his death, if there be nothing in the will to give it a different effect; hence it cannot operate upon any property in which the testator has no interest when it takes effect. Therefore, the general rule is that if, after making a will, the testator executes any legal conveyance of the devised property, the will is revoked. But in order to defeat altogether a tes- tamentary disposition and produce intestacy, there must 2 9 Rev. St. 1909, § 539. 3 Rev. St. 1909, § 544; Story v. Story, 188 Mo. 110, 86 S. W. 225. SI Ante, § 30. § 58 THE REVOCATION OF WILLS 49 be a sul)sequent conveyance of the whole estate.^^ If the conveyance be of a part only it will amount to a revocation pro tanto; to the extent of the conveyance there is a rev- ocation and nothing more.^^ * So if the alteration in the testator's circumstances is such as to render it impossible to execute any part of his will, it will be considered as en- tirely revoked; but if it can be partly executed, the revoca- tion is as to the part which cannot be carried into effect. If after the execution of a will, a testator purchase land which would be included in the general description of the land devised by the will, it is no revocation of the will, ei- ther in whole or in part.^* Nor is a gift of real estate to a son by his father in his lifetime, and after the date of his will, an ademption pro tanto of a pecuniary legacy in the the same will, the gift and bequest not being ejusdem generis.''^ Nor is a convey- ance of other land made subsequently to a devise of lands a revocation or satisfaction of a devise of the lands to the grantee. If it be a portion of the same land, it is a revoca- tion pro tanto.^« The doctrine of ademption is regarded by the courts as a satisfaction of a bequest rather than as a revocation of the will.^'' § 58. Same. — At common law the doctrine of implied revocation arose, not only in cases where the testator ac- tually sold the property devised, but the least alteration of his interest in it was a revocation, on the ground of its 3 2Cozzens v. Jamisou, 12 Mo. App. 452; Marshall v. Hartzfelt, 98 Mo. App. 178, 71 S. W. 1061. 3 3 Cozzens v. Jamison, 12 INIo. App. 452; Marshall v. Hartzfelt. 98 M«. App. 178, 71 S. W. 1061. 34 Blandin v. Blandiu, 9 Vt. 210; Hawes v. Humphrey, 9 Pick. (Mass.) 850. 20 Am. Dec. 481 ; Brush v. Brush, 11 Ohio, 2S7 ; Barker V. Mechanic Fire Ins. Co., 3 Wend. (N. Y.) 96, 20 Am. Dec. 664. 3 5 Dugan V. Hollins. 4 Md. Ch. 1.S9. 36 Fisher v. Keithley. 142 Mo. 244, 43 S. W. 650, 64 Am. St. Rep. 560; Marshall v. Hartzfelt, 98 Mo. App. 178. 71 S. W. 1061; Coz- zens V. Jamison. 12 Mo. App. 452. 3 7 Fisher v. Keithley, 142 Mo. 244. 43 S. W. 650, 64 Am. St. Rep. 560. *To deprive one of the land devised to him on the ground that the testator, after making the will, conveyed the land to another person by a deed which was lost and not recorded, the evidence should be clear in support of the deed. The sworn statement of the person claiming as grantee, unsupported by other evidence, is not sufficient. Napton v. Leaton, 71 Mo. 358. Kel.INIo.P.G.— 4 50 THE REVOCATION OF WILLS § 58 being evidence of an alteration of the testator's mind. The law required that the interest the testator had in the prop- erty at the time he made the will should continue to be the same and remain unaltered till his death. But a mort- gage or charge upon the estate was made an exception to the general rule, and was only a revocation, in equity pro tanto, or quoad the special purpose. The statute of Missouri has changed the rule in part as to such cases. It provides that a bond, a covenant, or agreement made for a valuable consideration by a testator, to convey any property devised or bequeathed in any last will previously made, shall not be deemed a revocation of such previous devise or bequest, either in law or equity; but such property shall pass by the devise or bequest, sub- ject to the same remedies on such bond, covenant or agree- ment, for specific performance or otherwise, against the devises or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.^** It is also provided, that a charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the per- formance of any covenant or agreement, shall not be deemed a revocation of any will previously executed relat- ing to the same estate but the devises and legacies therein contained shall pass and take elTect, subject to such charge or incumbrance."^ A conveyance in trust, for the payment of the debts of the grantor, and then to revert to him, is not such a disposition of the estate as to revoke a previous will.*" But if the testator should sell and convey the real estate devised, and take back a bond and mortgage for the whole or a part of the purchase money, the effect of the sale would be a revocation of the will as to the real estate so sold and conveyed.'*^ It has been held in such case, how- ever, that if the testator in his life time, take back the prop- erty by a conveyance, and is seized of it at his death, the devise will be effectual.*^ 3 8 Rev. St. 1000, § 541. 3 9 Rev. St. 1000, § 542; 4 Kent. Com. 652; Sauer v. Griffiu, 67 Mo. 654 ; Whittelsey v. Brohammer, 31 Mo. 98. 40 joues V. Hartley, 2 Wliart. (Pa.) 103. 41 Adams v. Winne. 7 Paige (N. Y.) 101; Brown v. Brown, 16 Barb. (N. Y.) 569; Barstow v. Goodwin, 2 Bradf. Sur. (N. Y.) 413. 4 2 Van Rensselaer v. Witbeck, 7 Barb. (N. Y.) 142; Arthur v. Ar- thur, 10 Barb. (X. Y.) 9. § 60 THE EEPUBLICATION OF WILLS SI CHAPTER VI OF THE REPUBLICATION OF WILLS § 51). Republication of a will. GO. Same — By a codicil. Gl. Eftect of puhlication. Having shown how a will may be made, and also how it may be revoked, it wnll now be in order to point out the way in which a will may be republished, and the effect of such republication. § 59. Republication of a Will. — When a will has been successfully revoked, its efiicacy as a testamentary instru- ment is destroyed, and it can only be restored by republi- cation. This may be done in three ways, viz: (1) By ex- press republication, as where the testator repeats the cere- monies and procures the proper attestation of witnesses, as in the case of the execution of a will.^ (2) By a codicil, duly executed and attested in the manner required for the execution and attestation of a will. (3) A will which has been revoked or superseded by a subsequent will, may be revived and restored to force, by the terms of the instru- ment revoking the subsequent will, showing an intention to revive and give effect to the first will.- But such an in- strument must be executed and attested in the manner re- quired for the execution of a will. It would seem unnecessary to state that a will once re- voked cannot be republished by parol. Nor can a will ex- ecuted according to law, but not expressly revoked, be re- published by parol. It can only be done by repeating the formalities by which it was first made.^ § 60. Same — A Codicil duly executed amounts to a re- publication of the will to which it refers, whether it is an- nexed to the will or not, or is, or is not, confirmatory of it; for every codicil is, in construction of law, part of a will, whether it be so stated in such codicil or not ; and as such, 1 Jackson v. I'otter. Johns. (N. Y.) 312 ; Jackson v. Ilolloway, 7 Johns. (N. Y.) 3D4; Jarman on Wills, 202. 2 Rev. St. 1009, § T)!;;. 3 Cozzens v. Jamison. 12 Mo. App. 452 ; Banks v. Banks, 65 Mo. 432; Beaumont v. Keim, 50 Mo. 28. 52 THE REPUBLICATION OF WILLS § 60 furnishes conclusive evidence of the testator's considering his will as existing.* Yet if there are several wills of dif- ferent dates, and there be a question as to which one the codicil relates, the circumstance of annexation is strong to show that it was intended as a codicil to the will to which it is annexed, and to no other. A will or codicil containing a devise of real estate, but not duly attested, may be repub- lished and made operative by a subsequent codicil, having the requisite attestation, though it be in no way annexed to the will or prior codicil, but it should distinctly refer to it.^ So a codicil may republish a will, so as to give effect to a devise otherwise void on account of the devisee being a witness to the original will.*' A will executed by a party under undue influence, may be republished and confirmed by a codicil executed afterward, and when the testator is free from such influence. '^ A codicil referring inaccurately to a will may republish it; and it will be taken to refer to the last in date of sever- al wills, if no date be mentioned; but if the date of a par- ticular will be expressed, it will refer to that one f and if a last will be referred to and there is nothing in the con- tents of the codicil to point to any particular will, it must be construed to refer to the will in legal existence as the last will and not to a revoked will.^ A will revoked by the marriage of the testator may be revived by a codicil made after such marriage which refers to such will. And a will revoked by the marriage of a feme sole may be republished by a codicil or otherwise after her marriage, for a mar- ried woman may make a will. If it should appear on the face of the codicil that it was not the intention of the tes- tator to republish a former will, the ordinary presumption derived from the existence of the codicil in that regard will be counteracted.^*' 4 Williams, Ex'rs, 184 ; Movers v. White, 6 Johns. Ch. (N. T.) 375; Van Cortlandt v. Kipp, 1 Hill (N. Y.) 590. 5 Haven v. Foster, 14 Pick. (Mass.) 543 ; Miles v. Boyden, 3 Pick. (Mass.) 216; Barnes v. Crowe, 1 Vesey, Jr. 486-498. 6 Movers v. White, 6 Johns. Ch. (N. Y.) 375 ; Brimmer v. Sohier, 1 Cush. (Mass.) 118. 7 Gist V. Rof,'ers, 1 Rice (S. C.) 80. 8 Crosbie v. Macdoual, 4 Vesey, 615 ; Lord Walpole v. Lord Or- ford, 3 Vesey, 402. 9 Hale v. Tokelove, 2 Robert. Ecc. 326. 10 Strathmore v. Bowes. 7 T. R. 482 ; Id., 2 Bos. & Pul. 500; Marks v. Marks, Comp. 132 ; Price's Adm'r v. Boswell, 3 B. Mon. (Ky.) 24. § 61 THE REPUBLICATION OF WILLS 53 § 61. Effect of Republication. — The republication of a will is equivalent to making- the will anew; that is, the will republished is a new will. And upon the principle that of any number of wills the last and newest is the one in force, it revokes any will of a date prior to that of the republica- tion.-^^ Addini^' a codicil to a will is a republication, and the codicil brings the will to it, and makes it a will from the date of the codicil.-^- Indeed, republishing a will is simply executing it, and no matter how long it may have been writ- ten or what its original date may be, the republication brings it down and gives it life and force as of that date. A repub- lished will extends, in its operation, to the estate of the tes- tator as it exists at that time, and embraces subjects which have arisen between its original date and republication.-^^ Therefore, lands bought after a will and before the codicil may pass by the will.^* So, lands purchased after making a will, may pass by it in case of republication.^'' A will is construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a con- trary intention shall appear by the will ; therefore, after ac- quired estate passes under a general devise, so that the ef- fect of a republication being the same as a new will, its con- sideration here is not of much importance. 11 Walpole V. Cholmondeley, 7 T. R. 138; Walpole v. Orford, 3 Vesey, 402. 12 Murray v. Oliver, 41 N. C. (6 Ired. Eq.) 55. 13 Movers v. White, 6 Jobns. Ch. (N. Y.) 375. 14 Miles V. Boy den, 3 Pick. (Mass.) 213; Haven v. Foster, 14 Pick. (Mass.) 543. 15 Luce v. Dimock, 1 Root (Conn.) 82. 54 THE PROBATE OF WILLS § 62 CHAPTER VII OF THE PROBATE OF WILLS § 62. Production of will for probate. 63. Probated in what county — By court or clerk, etc. 64. Same — Death of testator to be shown. 65. Same— Will, how proved. 66. Same — Form of will. 67. Commission to take proof — When and form. 68. Return to commission and examination. 69. Witness dead or absent, etc. 70. Proof to be reduced to writing. 71. Hand-writing — How proved. 72. Will admitted against the evidence of attesting witnesses. 73. Proof of lost will. 74. Soundness of testator's mind to be proven, 75. Order of probate and certificate. 76. Codicil must be proven, etc. 77. Proof of nuncupative will — Citation, etc. 78. Judgment of probate — Effect — Forms. § 62. Probate — Production of Will. — A will takes ef- fect on the death of the testator, but it must be admitted to probate — i. e., proved before the proper tribunal to be the last will and testament of the deceased — before its pro- visions can be carried into effect.^ At common law the proper person to cause the will to be proved was the ex- ecutor named in it, and no other person had a right to do so until he renounced the executorship ; but under our law, any person interested in the estate may cause it to be proved, and any person having possession of the will may be compelled by the proper court to produce it for probate,- § 63. Same — In what County. — The law does not point out any particular manner in which a will must be proved, but it designates the place and court where it must be done. Of course, the court having probate jurisdiction is the proper tribunal to hear the proof and pass, in the first in- stance, upon the validity of the will.^ 1 Rev. St. 1909, § 547 ; Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. St. Rep. 576; Snuffer v. Howerton, 124 Mo. 637, 28 S. W. 166 ; Smith v. Estes, 72 ]\Io. 310. 2 Rev. St. 1909, § 584; 1 Williams, Ex'rs, 287. 3 Stowe v. Stowe, 140 Mo. 594. 41 S. W. 951 ; Banks v. Banks, 6a Mo. 432 ; Clark v. Carter, 200 Mo. 515, 98 S. W. 594. § 64: THE PROBATE OF WILLS 55 The probate court, or clerk in vacation, subject to con- firmation or rejection by the court, must take proof of last wills.* The clerk may take the proof, but unless the will is established or probated by the order or judgment of the court it is not legally established,^ and is not admissible in evidence as a will.'^ A devisee takes no title unless the will is probated.'^ If the testator had a mansion house or known place of abode in any county in Missouri, his will must be there proved ; if he had no place of residence and lands are devised, it must be proved in the county where any part of the lands lie ; and if he had no place of residence, and no lands are devised, the will must be proved in the county in which the testator died ; or if he died out of the state, it may be proved in any county.** § 64. Same — Death of Testator. — In order to probate a will the death of the testator must be shown, not posi- tively in all cases, but to a reasonable degree of certainty. The fact may be proved by presumptive, as well as by di- rect, evidence. Where the executor or friends of the tes- tator appear before the court and announce his death, this is taken as prima facie evidence of the fact. So, if a per- son goes abroad, or is away from the state in which he usually lived for the period of seven, years, and has not been heard of, and no account can be given of him, the presump- tion arises that he is dead.'^ As a rule, the burden of prov- ing the death of the testator, lies on the party who asserts it, and the onus or burden, is upon the proponents of the will to prove its proper execution and attestation, and that the testator was of proper age and of sound mind.^'' But 4 Rev. St. 1900. § 547 ; Banks v. Banks. G5 Mo. 432 ; Cash v. Lust. 142 Mo. 630, 44 S. AY. 724, 64 Am. St. Rep. 576. 5 Smith V. Estes, 72 Mo. 310 ; Snuffer v. Howerton. 124 Mo. 637, 28 S. W. 166 ; Stowe v. Stowe, 140 Mo. 504. 41 S. W. 051. 6 Barnard v. Bateman, 76 Mo. 414 ; Rothwell v. Jamison, 147 Mo. 601. 40 S. W. 503. 7 Snuffer v. Howerton, 124 Mo. 637, 2S S. W. 166. 8 Rev. St. 1000. § 54S. 9 Carpenter v. Supreme Council. Let;ion of Honor. 70 Mo. App. 507 ; Sprinsnieyer v. Sovereign Camp. Woodmen of the World. 144 Mo. App. 483, 120 S. W. 273. 10 Maddox v. Maddox. 114 Mo. 35. 21 S. W. 400, 35 Am. St. Rep. 734 ; Carl v. Gabel. 120 Mo. 28.3, 25 S. W. 214 ; Sehr v. lindemann. 153 Mo. 276, 54 S. W. 537; Ilogan v. Hinchey, 105 Mo. 527. 04 S. W. 522; Mowry v. Norman. 204 Mo. 173, 103 S. W. 15; Cowau v. Shaver, 107 Mo.' 203. 95 S. W. 200.' 56 THE PROBATE OF WILLS § 65 in the case of a contest in the circuit court, after the formal proofs have been made, it devolves upon contestants to sustain the objections to the validity of the will.^^ § 65. Same — How Proved. — There are at common law two ways of proving a will ; in common form and solemn form or per testes. A will is proved in common form when the executor presents it before the court, and in the absence and without citing the parties interested, produces the evi- dence to prove its execution. To prove a will in solemn form or per testes, the persons interested (the widow and next of kin,) must be cited to be present at the "probation and approbation.'' ^^ A will in writing is usually probated in Missouri in common form. It is presented to the proper court, and the attesting witnesses are produced, whose tes- timony in support of the execution of the will is reduced to writing, and upon the testimony thus given the officer or court decides as to the validity of the will. The widow or next of kin may, or may not, be present, they are not cited or notified to witness the probate of the will. But a nuncupative will must be proved per testes. The widow or next of kin of the deceased, must be notified by citation, accompanied with a copy of the will, that they may contest the probate if they think proper. ^^ The term next of kin, in the statute, is understood to embrace only that class of persons to whom administration of the estate of the de- ceased would be committed in case of intestacy.^* A will proved per testes, was conclusive upon all the next of kin, who were cited to "see proceedings." ^^ The provision in the Missouri statutes that any person interested in the pro- bate of any will may appear within two years after the pro- bate and by petition to the circuit court contest the validity of the will deprives the proceedings in the probate court of conclusive force for that period of time regardless of whether or not those interested were present at or notified of the probate. ^^ 11 Campbell v. Carlisle, 162 Mo. 6.34, 6.3 S. W. 701; Schierbaum v. Schemme, 157 Mo. 1, 57 S. W. 526, SO Am. St. Rep. 604 ; Southworth V. Southworth, 17.3 Mo. 59, 73 S. W. 129. 12 1 Williams, Ex"rs, 291, 298. 13 Rev. St. 1909, § 562. 14 1 Williams, ILx'rs, 298. IB 1 Williams, Ex'rs, 301. 16 Rev. St. 1909, § 555. See post, § 84. § 07 THE PROBATE OF WILLS 57 § 66. Same. — When a will is exhibited to be proven, the court or clerk may immediately receive the proof and grant a certificate of probate; or, if the will be rejected, grant a certificate of rejection. The form of taking the testimony of the attesting witnesses in proof of a will is usually as follows: Proof of Will State of Missouri, \ County. j In the matter of proving the last will and testa- \ Trobate Court luent of late of county, deceased. \ of county. On this day of , 19—, before me, of the probate court, within and for said county, personally came and , who being by me duly sworn, on their oaths say, that they were present and saw R. R. sign the foregoing instrument, purporting to be his last will and testament, and heard him publish and declare the same to be his last will and testament, and that, at the time of signing and publishing the same, the said R. R. was of sound and disposing mind, and that these deponents (and H. H., the other at- testing witness,) subscribed their names thereto as witnesses to the same, in the presence and at the request of the testator, and in the presence of each other. Subscribed and sworn to, etc. If all the witnesses do not appear and testify at the same time, or to the same facts, their testimony may be taken separately. The witnesses may be cross-examined touching the proof of the will, in which case, the testimony of each witness should be taken in the form of a deposition. § 67. Commission to take Proof. — If any witness is pre- vented from attending by sickness, or resides out of the state, or more than forty miles from the place where the will is to be proved, the court or clerk may issue a commis- sion, annexed to the will, and directed, if the witness re- sides out of the United States, to any court having a seal. or mayor, or other chief ofificer of any city or town having a seal, or to any minister or consul where the witness may reside; if, out of the State of Missouri, and within the United States, to any court having a seal, or to any notary public in the state, territory, or district where the witness resides; and if within this state, to any court having a seal, or judge thereof, or justice of the peace, notary public or mayor or other chief officer of any city or town in the county w^here the witness resides, empowering him to take and certify the attestation of such witness.^^ 17 Rev. St. 1909, § 550. 58 THE PROBATE OF WILLS § 67 Form of Commission State of Missouri, | Comity. j ' ■ The State of Missouri to any , greeting: Kno\^' ye, tliat we hereby empower you to cause to come before you at the time and place to be by you appointed, O. R.. an attest- ing witness to the annexed instrument of writing, purporting to be the hist will and testament of R. R., deceased, and to then and there examine him, the said O. R., on oath, touching his knowledge of the execution of said instrument, and of the condition of the mind of the said R. R. at the time of the execution and publication of the same as his last will and testament. The examination thus taken, you will reduce to writing and cause the same to be sub- scribed and sworn to by the said O. R., and thereupon you shall certify the same under your hand to of our court of said county. In witness whereof, I, of said court, have hereunto set my name and atfixed the seal of said court, at on this day of , 19—. J. R. [L. S.] (Style of office.) The officer acting under the commission should cause the witness named in it to be examined, on oath, touching the execution of the will, and certify and return his testimony to the court whence the commission issued. § 68. Return. — The examination may be in the follow- ing form : Return to Commission State of , ] ... County of , [''' Pursuant to the authority given by the annexed commission is- .sued by tlie of the court of the county of , and state of Missouri, I, J. P., (state the name and style of the offiecr talcing the testimony) did on the day of , 19 — , cause to come before me at (my office) in the county of , and state of , W. W. of , who being duly sworn, on his oath states, that R. R., the testator, signed his name to the writing annexed to the commission hereto attached, as his last will and testament, (or that A. J. signed it for him by his direction, in his presence), that the .said R. R. was of sound mind and over twenty-one years of age at the time of executing the same, and that he, the said W. W., and ¥j. F. (and ), subscribed their names thereto as attesting witnesses in the presence of and at the request of said R. R., and in the presence of each other. (Set out the evidence.) W W . Sworn to and subscribed before me this day of — —— , 19 — , and I certify that the foregoing testimony of the said W. W. was by "me reduced to writing, and by him subscribed in my presence, on the day and year, and at the jilace above written, and his tes- timony, so by me taken and certified, is herewith returned. J P . (Style of office.) § 71 THE PROBATE OF WILLS 59 The testimony thus taken will have the same force as if taken before the ccnirt or clerk/'* § 69. Witnesses Dead. — Where one of the witnesses to the will has been examined, and the other witness or wit- nesses are dead, insane, or their residences unknown, proof must be made of the hand-writing of the testator, and of the other witness or witnesses, and of such other circum- stances as would be sufficient to prove a will in a trial at common law.^'' If it should appear to the satisfaction of the court, or clerk, that all the subscribing witnesses to the will are dead, insane, or their residences unknown, proof of the hand-writing of the testator, and of the subscribing wit- nesses to the will, must be made and received, together with such other facts and circumstances as would be sufficient to prove the will in a trial at law.-*^ § 70. All the proof adduced in support of any will, must be reduced to writing, signed by the witnesses and certified by the judge of probate or clerk.-' It is not necessary to record the evidence taken in support of the will, but the judgment of the court establishing the will should show that witnesses were examined and the necessary proof taken. -- § 71. Hand-writing — How Proved. — When it becomes necessary to prove the hand-writing of the testator or of the witnesses to the w-ill, it may be done by the evidence of persons acquainted with their hand-writing. And, even if the witness has not seen the testator or attesting witness write, if he has corresponded with him, and in that way be- come acquainted with his signature, he may testify as to its genuineness. The name or hand-writing in question may be compared with any writing proved to the satisfaction of the judge to be genuine, and such writing may be submitted to the court or jury with other evidence touch- ing the genuiness of the signature in question.-^ When the proof of the will is made by proof of the signatures 18 Rev. St. 1900. § 551. 20 Rev. St. 1909, § 553. 19 Rev. St. 1909, § 552. 21 Rev. St. 1909, § 554. 22 Charlton v. Brown, 49 Mo. 35.3; Rodney v. McLaughlin. 97 Mo. 42C, 9 S. W. 726. 2 3 Rev. St. 1909, § 6382; St. Louis Nat. Bank v. Hoffman. 74 Mo. App. 203; State v. Thompson. 141 Mo. 408, 42 S. W. 949; State V. Stark. 202 Mo. 210. 221, 1(H3 S. W. 642; Sanders v. North End Building & Loan Ass'n, 178 Mo. 674, 680. 77 S. W. 833. 60 THE PROBATE OF WILLS § 72 of the testator, and of attesting witnesses, it should be fortified if possible by other circumstances, such as the acknowledgment of the testator that he had made a will, and of its terms, or that he had deposited it in a par- ticular place, in which it was found, or that it was found in his possession among his papers, or other personal ef- fects. In the proof of wills, as in all other matters, the law requires that the best evidence shall be produced, or its absence satisfactorily accounted for, before evidence of an inferior degree can be received ; therefore, if any of the attesting witnesses are living and their testimony can be procured, evidence of the hand-writing will not be allowed, as it is not the best evidence in the case. § 72. Admitted against the Evidence of Attesting Wit- ness. — A will may be admitted to probate as duly executed, if the testimony, in the opinion of the court, should war- rant it, notwithstanding the attesting witnesses may have no recollection at all of its execution, or one only may af- firm and the other negative, or even both should negative a compliance with the statute in its execution, or depose to the incapacity of the testator.^"* If a subscribing witness should deny the execution of the will, he may be con- tradicted as to the fact by another subscribing witness, or other testimony ; and even were all the attesting witnesses to deny their attestation of the will, they might be con- tradicted and the will established by opposing testimony.^^ If an attesting witness is competent at the time of the at- testation, but becomes incompetent afterward, the will may be established by secondary evidence. Where the subscrib- ing witnesses are heirs at law of the testator, but obtain nothing under the will and so are competent to testify to its due execution, but refuse to testify at the probate of the will, secondary evidence to prove its due execution is ad- missible.^® § 73. Proof of Lost Will. — If a will has been lost or de- stroyed, without the knowledge of the testator, its exist- ence, due execution and contents may be established by 24 Odenwaelder v. Schorr, 8 'Slo. App. 458 ; Morton v. Heidorn, 135 Mo. 60S, 37 S. W. 504; Craig v. Craig, 1.5G Mo. 358, 56 S. W. 1097; Lorts v. Wasli, 175 Mo. 487, 75 S. W. 95. 2 5 Mays V. Mays, 114 Mo. 536, 21 S. W. 921; Morton v. Heidorn, 135 Mo. 608, 37 S. W. 504. 2« Holmes v. Hollonian, 12 Mo. 535. § 74: THE PROBATE OF WILLS 61 secondary evidence, such as a copy, the testimony of sub- scribing witnesses, and of other persons who may have seen the will and can testify as to its existence and con- tents.-^ And it seems that if the whole of such a will can- not be established, probate will be granted of so much of it as can be proved;-'* and when any portion of the will does not properly belong to it, or is illegal or fraudulent, it may be excluded and the balance of the will be probated.-" If the due execution of a last will be satisfactorily proved by the proper number of witnesses, or other evidence, its contents may be established by the testimony of one wit- ness.***^ It is a rule of general application to the proof of any lost writing or written instrument, that the loss of the original must be established, either by showing that it had been destroyed accidentally or that after diligent search, where it is usually kept or most likely to be found, it could not be found, in order to admit secondary evidence of its contents. ^^ § 74. Soundness of Mind, — In proving a will in the first instance before the probate court or clerk, the subscribing witnesses must testify as to the soundness of the testator's mind at the time of making the will; ^- but their testimony is not conclusive either for or against the validity of the will. Other witnesses who were acquainted with the tes- tator at the time of the execution of the will may testify upon the point. The general rule is that witnesses must speak to the facts within their own knowledge; that their mere opinions are not admissible. But under the excep- 2T Varnon v. Varnou, 67 Mo. App. 534; Dickey v. IMalechi, 6 Mo. 177, 34 Am. Dee. 130 ; Graham v. O'Fallon, 4 Mo. 338 ; Hamilton v. Crowe, 175 Mo. 634, 75 S. W. 389. ^« Southworth v. Southworth. 173 Mo. 59, 73 S. W. 129; Dickey V. Malechi, 6 Mo. 177, 34 Am. Dec. 130; Jackson v. Jackson. 4 Mo. 210. 29 Kenrick v. Cole. 01 Mo. 572; Banks v. Banks, 65 Mo. 432; 3 Redfielfl on WilLs, 52. pi. 2. 30 Graham v. O'Fallon, 4 Mo. 338; Dickey v. Malechi, Mo. 177, 34 Am. Dec. 1.30. 31 Mays V. Mays. 114 Mo. 536, 21 S. W. 921; Meier v. Meier, 105 Mo. 411, 16 vS. W. 223 ; Hume v. Hopkins, 140 Mo. 65, 41 S. W. 784 ; Brown v. Massey, 138 Mo. 519, 38 S. W. 939 ; Cross v. Williams, 72 Mo. 577. 3 2Withinton v. Withinton, 7 Mo. 589; Mays v. Mays, 114 Mo. 536, 21 S. W. 921; Fulbright v. Perry County, 145 Mo. 432, 46 S. W. 955. 62 THE PROBATE OF WILLS § 75 tions to the rule, persons called experts may give their opin- ions in evidence in relation to matters of science or skill, and any person may give his opinion as to the identity of a person or thing. So touching the mental capacity or san- ity of the testator, any witness may state his opinion in con- nection with the facts upon which it is founded, as the ap- pearance and conduct of the testator. ^•■' But such a witness cannot be permitted to state whether the testator was, or was not, in his opinion, of sufficient mental capacity to make a will.^* If the testator is found to have sufficient capacity, the injustice or inequalities in the disposition of his property will not defeat the will."^ § 75. Order of Probate. — The nature of the proof and the nvmiber of witnesses required to establish a will are generally regulated by statute. Two or more witnesses must attest the execution of a w^ill, and it is sufficient if two of the witnesses depose as to its due execution. And if the witnesses are dead, or cannot be found, proof of the hand writing of the testator and of two of the witnesses will be sufficient. If, upon hearing all the evidence, it appears that the will was duly executed in accordance with the provi- sions of the statute, and that the testator was of sound mind, and the will was not procured by fraud or undue in- fluence, the court or clerk will declare the will proved and grant a certificate of probate."*^ But if the evidence is in- sufficient the instrument should be rejected as not being a valid or legal will, and a certificate of rejection granted. The certificate, whether of probate or rejection, should be written on the back of the instrument, or be annexed to it, 33 Hendley v. Globe Refinery Co., 100 Mo. App. 20, 79 S. W. 1163; Hurt V. St. Louis, I. M. & S. Ry. Co., 94 Mo. 255, 7 S. W. 1, 4 Am. St. Rep. 374; Sharp v. Kansas City Cable Ry. Co., 114 Mo. 94, 20 S. W. 03 ; State v. Soper, 148 Mo. 217. 49 S. W. 1007 ; Richardson V. Smart. 152 Mo. 623, 54 S. W. 542, 75 Am. St. Rep. 488 ; State v. Bronstine, 147 Mo. 520, 49 S. W. 512 ; Appleby v. Brock, 76 Mo. 314. 3 4 Farrell's Adm'r v. Brennau's Adm'x, 32 Mo. .328. 82 Am. Dec. 137; Wightman v. Grand Lodge, Ancient Order of United Workmen of Missouri, 121 Mo. App. 252, 98 S. W. 829. 3 5McFadin v. Catron, 138 Mo. 197, 38 S. W. 932; Maddox v. Maddox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. 734; Dausman V. Rankin, 189 Mo. 677, 88 S. W. 696, 107 Am. St. Rep. 391; Ful- bright V. Perry County, 145 Mo. 432, 46 S. W. 955; Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. St. Rep. 576. :•« Rev. St. 1909, § 549; Creasy v. Alverson, 43 Mo. 13. § 77 THE PROBATE OF WILLS 63 and the docunieiit must remain among the files and records of the court. State of Mis.souri, ] County of \ ^^' I, , jiulse (or clerk) of the probate court of the county and state aforesaid, having examined tlie foregoing instrument of writ- ing, signed by D. C, and purporting to be the last will and testa- ment of D. C, deceased, and liaving heard the te.stimony of A. U. and A. H. (the names of the witnesses examined), subscribing wit- nesses thereto, in relation to the execution of the same, do declare and adjudge said instrument of writing to be the last will and tes- tament of said D. C, deceased, late of county, state of , and record the same as such. In Testiniony Whereof, I have hereunto set my hand and affixed the seal of said probate court of — ■ — ■ — county, at office in , this day of , 11) — . IL. S.] S. A., . (Judge or Clerk.) § 76. Codicil Must be Proved. — If the testator has made a codicil to his will, it must be proved in the same manner, and the certificate may include the codicil and will, as to- gether constituting the will of the deceased. The same proof is recpiired to establish a codicil, and it may be of the same character as that used in proving a will, and where there are more than one codicil, one may be probated and the other rejected, or both, or all may be rejected, as not properly executed, and the will without them be received. Where a codicil repuljlishes a will, or a will is republished by another instrument, the due execution of such codicil or other instrument and proof thereof, in the manner re- quired in the proof of wills, may be a sufficient proof of the will itself to admit it to probate, without proof of the ex- ecution of the original will in the first instance. § 77. Proof of Nuncupative Will. — In Missouri, a nun- cupative will cannot be proved until fourteen days after the death of the testator, nor later than six months after speaking the testamentary words, unless the substance of such words were reduced to writing within thirty days after they were spoken. And in any case before such a will can be proved, the words or substance of them must be com- mitted to writing, and a citation issued, accompanied with a copy of the words constituting the will, to the widow or next of kin of the deceased, notifying them where and when the will shall be proved, in order that they may be present and contest the probate of such will.^^ 3 7 Kev. St. 1900. §§ 501, 5U2. 64 THE PROBATE OF WILLS § 77 Form of Citation State of ISIissoiiri, ] County. I " The State of Missouri, to Greeting: Whereas, A. B., ou the day of -, 19 — , presented to tlie court of said county, an instrument in writing, said to be the unwritten or nuncupative hist will and testament of R. R., late of , deceased, (a copy of which will is hereto annexed), asking that the same may be proved, and by the court adjudged to be the last will and testament of said R. R., deceased. You are, therefore, hereby commanded to cite and give notice to Mrs. R,, the widow, and , children and next of Ivin of the said R, R., deceased, to be and appear before the court of county, on the — • — — day of , 19 — , the day of the term, 19 — , thereof, at the court house in , tlien and there to witness proceedings in the matter of proving tlie said in- strument to be the last will of said R. R., deceased. And hereof malce due service and return as the law directs. In witness whereof, I have hereunto set my hand, and the seal of said court hereto affixed at office in , this day of , 19—. [L. S.] J. R. (Style of office.) § 78. Judgment of Probate. — When a decision is made by the court upon the question of admitting a will to pro- bate, an entry thereof should be made in the records, recit- ing briefly the proceedings and order of the court. The probate of a will is a judicial act which can only be shown by the records of the court. ^^ The certificate of probate granted by the clerk of the court is not conclusive for or against the admission of the will to probate, and without an order made by the court at its next term thereafter, con- firming his act, it would not constitute sufficient evidence that the will had been duly admitted to probate.^'* Yet, it has been held that when the will has been recorded as re- quired by law, with the proof of its execution indorsed upon it and certified by the clerk, it may be inferred after the lapse of many years that the order of the court admitting it to probate had been made, although no certificate of such fact was attached to the copy produced in evidence.*" The judgment of probate of a will, like any other judgment or judicial act, is binding on all the world until set aside in the 38 Creasy- V. Alverson, 43 Mo. 13; Ilaile v. Hill, 13 Mo. 612; Charl- ton V. Brown, 49 Mo. 353. 39 Creasy v. Alverson. 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Jourden v. Meier, 31 Mo. 40; Barnard v. Bateman, 76 Mo. 414; Snuffer v. Howerton, 124 Mo. 037, 28 S. W. 166. 4 Rothwell V. .Jamison, 147 Mo. 601, 49 S. W. 503. § 78 THE PROBATE OF WILLS 65 mode, and within the time prescribed by law; nor can its validity be attacked collaterally.'*^ It can only be done in a proceeding instituted for that purpose under the statute.** If the proof be lost or misplaced, or has not been preserved, the judgment of the court estaljlishing the will, or a cer- tified copy thereof would be admissible, and could not be attacked in a collateral proceeding,*'' and the insufficiency of the proof on which the judgment of probate was given is no objection to its admissibility.** Unless a will be pro- bated it cannot be received as evidence of title, though it may be admitted to show color of title to sustain adverse possession. *° And a will concerning personalty probated in a foreign state may be admitted here, though not pro- bated here,*" but a will affecting real estate has no extra territorial force beyond the jurisdiction of the state where it is probated.*' An appeal does not lie from an order grant- ing probate of the will.*^ The probate of a will is in effect interlocutory, and becomes final only at the expiration of the time allowed for its contest,**^ or more properly speak- ing, it is effective and may be executed from the time it is established until it is defeated by a contest in the circuit court. '*' But when so defeated, a conveyance by a devisee after the probate of the will passes no title. ■n Jourden v. Afeier. 31 Mo. 40; Bunks v. Banks. 65 Mo. 432; Stowe V. Stowe, 140 Mo. 594, 41 S. W. 951; Dihvorth v. Rice, 48 Mo. 124; Fir.st Baptist ('luirch v. Robborson, 71 Mo. 326; Cohen v. Herbert, 205 Mo. 537. 104 S. W. 84, 120 Am. St. Rep. 772 ; Stevens V. Larwill, 110 Mo. App. 140, 84 S. W. 113; Stevens v. Oliver, 200 Mo. 492, 98 S. W. 492. 42 In re Duty's Estate. 27 Mo. 43; Gohen v. Herbert, 205 Mo. 537, 104 S. W. 84, 120 Am. St. Rep. 772. 4 3 Matney v. Graham. 50 Mo. 559: Charlton v. Brown. 49 Mo. 353. 44 In re Duty's Estate. 27 Mo. 43; .Tourden v. Meier, 31 Mo. 40; Creasy v. Alverson, 4."'. Mo. 13 ; Bradstreet v. Kinsella, 76 Mo. 63 ; Stevens v. Larwill. 110 ^io. App. 140, 84 S. W. 113, 4 5 I'ettitt v. Black, 13 Xeb. 142, 12 N. W. 841. 46M(Cnuslin v. MKiuire. 14 Kan. 250. 47 Emmons v. CJordon. 140 Mo. 490, 41 S. W. 998. 62 Am. St. Rej). 734; Fenderson v. Missouri Tie & Timber Co., 104 Mo. App. 290. 78 S. W. 819: Turner v. Campbell. 124 Mo. App. 1.33, 101 S. W. 119. 4 8 In re Duty's Estate, 27 Mo. 43. 4 Cash v. Lu.st, 142 Mo. 630. 44 S. W. 724. 64 Am. St. Rep. 576; Lamb v. Helm, 26 Mo. 420; Teokenbrock v. McLaufjhlin, 209 Mo. 533, 108 S. W. 46; Hogan v. Hinchey, 195 Mo. 527, 94 S. W. 522. 6 Stowe V. Stowe, 140 Mo. 594, 41 S. W. 951 ; Wat.son v. Alder- son, 146 Mo. .333, 48 S. W. 478, 69 Am. St. Rep. 615 ; Hughes v. Bur- riss, 85 Mo. 660. Kki.Mo.P.G.— 5 66 THE PROBATE OF WILLS § 78 The following may be used as a form of the entry of the probate upon the record : Proof of Will In the matter of the estate of ) ^^.^^^^ ^^ ^,.^j J. D., deceased. j On this day conies A. B., of . and produces to the court an instrument in writing, purporting to be the Uist will and testament of J. D., deceased, and attested by C. D., E. F. and J. K. as wit- nesses ; and the said A. B. prays that said instrument in writing be proved and admitted to record as tlie last will and testament of the said J. D. And it being shown to the court by satisfactory evidence that said J. D., late of the county of — , died on or about the day of , 19 — , at the court proceeded to hear the proof of the execution and publication of said instru- ment as his last will. And thereupon come E. D. and E. F., two of the said attesting witnesses who being first duly sworn, say respectively, that they were well acquainted with J. D., late of county, deceased, in his life time. And the said instrument so produced by said A. B., purporting to be the last will of said J. D., being here shown to them, they each further say that they were present at the execution of said will and saw the said J. D. sign it on the day of the date thereof, and heard said J. D. say then and there that said instru- ment was his last will and testament ; that they subscribed their names as witnesses thereto, as did also J. K., who was also present at the execution of said instrument, at the request of the .said J. D., in his presence and in the presence of each other, and that the said J. D. was then of sound and disposing mind and memory, of full age and not under any restraint, and was competent to make a will. That the testimony of said witnesses was reduced to writing by the court and signed by them respectively. And now the court being sufficiently advised by the evidence of said witnesses of the proper and legal execution of said will, it is ordered and adjudged by the court, that said instrument in writing be considered proven and the same is established and adjudged to be the last will and testament of the said J. D., late of said county, deceased, and that it be admitted to record as such. Order of Approval and Confirmation of Probate by Clerk in Vacation In the matter of the e.state of 1 ^i * * ^t-h ^ ,^ , , ' Proof of Will. .1. D., deceased. ) It being shown to the court now here that in the vacation of this court, to wit, on the day of — < , 19 — , an instrument in writing, purporting to be the last will and testament of J. D., de- ceased, and attested by C. D., E. F. and G. H. as witnesses, was pro- duced before the clerk of this court to be proved and admitted to record as the last will of said J. D., deceased. And it being shown that said J. D. died on or about the day of , 19 — , the said clerk proceeded to take and hear the proof of the execution of 78 THE PROBATE OF WILLS 67 said instrument as his last will. And thereupon C. D. and E. F.. two of said attesting witnesses, l)eing first duly sworn ui.on their oaths, said that they were well acquainted with the said J. I>. in his life time, and they were present at the execution of said will and saw the said J. D. sign it on the day of the date thereof, and heard him say then and there that said instrument was his last will and testament; that they suhscribed their names as witnesses thereto at the request of said J. D., in his presence and in the presence of each other, and that the said J. I>. was then of sound and disposing mind and memory, of full age. and not under any restraint and was competent to make a will, which testimony of said witnesses was reduced to writing and signed by them respectively, and is now here i)roduced in court. And said clerk having declared said will proved, granted a certificate of probate on said day of , 10—. And the court having inspected said will, and seen and heard the testimony of the said attesting witnesses, so tuken by the clerk of this court in vacation, as to the execution of said will, and being sufficiently advised, it is ordered and adjudged by the court that said instrument be considered proved and the same is adjudged to be the last will of said J. D., deceased, and the said proceedings and action of the clerk in the premises be and the same are in all things ratified and confirmed, and that said will be admitted to rec- ord. 68 EECOBDING OF WILLS § T9 CHAPTER VIII RECORDING OF WILLS § 79. Wills to be recorded — Effect thereof. 80. Same — Wills conveying land. § 79. Will to be Recorded— Effect Thereof.— When a will has been admitted to probate, it must be recorded in a book kept for that purpose within thirty days afterward, and the original must be carefully filed in the office of the judge or clerk. ^ A will duly proved, recorded, certified by the judge, or clerk, and attested by his seal of office, may be read as evidence without further proof." And the record of any will made, proved and recorded as aforesaid, and the exemplification of said record by the judge or clerk of the court in whose custody it may be, will be received as evi- dence and will be as efifectual in all cases as the original would be if produced and proved, and may in like manner be repelled by contrary proof.^ In making a copy of a will to be used in evidence, the transcript must not only contain a true copy of the will, but it must also contain a copy of the probate of such will ; i. e., the proof of the will and the order admitting it to probate ; the whole to be duly authen- ticated by the proper certificate of the officer.* It need not contain the evidence in detail.^ § 80. Same — Wills Conveying Land. — In all cases where lands are devised by last will, a copy of the will must be re- corded in the recorder's office in the county where the land is situated, and if the lands are situated in different coun- 1 Rev. St. 1909, § 56.3 ; Rothwell v. Jamison, 147 Mo. 601, 49 S. W. 503. 2 Rev. St. 1909, § 564 ; Matney v. Graham, 50 Mo. 559. 8 Rev. St. 1909, § 565 ; Noe v. Kern, 93 Mo. 367, 6 S. W. 239. 3 Am. St. Rep. 544; Barnard v. Bateman, 76 Mo. 414; Charlton v. Brown, 49 Mo. 3.53 ; Rodney v. McLaughlin, 97 Mo. 426, 9 S. W. 726 ; Keith V. Keith, 97 Mo. 223, 10 S. W. 597 ; Tittman v. Thornton, 107 Mo. 500, 17 S. W. 979, 16 L. R. A. 410. 4 Bright V. White, S Mo. 422 ; Harvy v. Chouteau. 14 Mo. 587, 55 Am. Dec. 120; Budd v. Brooke, 3 Gill (Md.) 19S, 43 Am. Dec. 321; Ratcliff V. Ratcliffe, 12 Smedes & M. (Miss.) 134; Harris v. Ander- .son, 9 Humph. (Tenn.) 779; Cornelison v. Browning, 10 B. Mon. (Ky.) 425. 5 Charlton v. Brown, 49 Mo. 353. § 80 BECORDING OF WILLS 69 ties, a copy of the will must be recorded in the recorder's office in each county, within six months after probate." This statute is directory, and the failure to so record the will would not defeat the title of a devisee when other rights have not intervened.'' 6 Rev. St. 1900. § n(U; ; Lewis v. City of St. Louis, 3 Mo. App. 582 : Rodney v. Liiiulau, 104 Mo. 251. 15 8. W. 9G2 ; Brooks v. Eskins, 24 Mo. App. 29G: Rodney v. McLaughlin. 97 Mo. 426, 9 S. W. 726; Wolf V. Brown, 142 Mo. 612, 44 S. W. 733. 7 Wolf V. Brown. 142 Mo. 612, 44 S. W. 733 ; Rodney v. McLaugh- lin, 97 Mo. 426, 9 S. W. 726. 70 FOREIGN WILLS § 81 CHAPTER IX OF FOREIGN WII.LS § 81. What law governs — Domicile. 82. Same — Law of domicile. 83. Effect of judgment of probate in anotlier state. § 81. What Law Governs. — It is sometimes important to consider the law of domicile with reference both to wills and the succession to the estate of intestates. Formerly there was a difference of opinion among foreign jurists as to whether a will of personal estate executed as required by the lex loci actus, but not in conformity with the law of the testator's domicile, was a valid disposition of such property. But it appears to be the generally received doctrine now, that the law of the testator's domicile at the time of his death governs as to his testamentary capacity, and a will of personalty, if made in accordance with that law, will be valid, although it does not conform to the lex loci actus. ^ And, on the other hand, it has been held in many of the American states that if such a will be void by the law of the testator's domicile at the time of his death, it is a nullity everywhere, although it may be executed in compliance with the law where the property is located.- But such is not the law in Missouri. It is enacted by statute in this state, that any person owning real or personal estate in this state may devise or bequeath such property, by last will, ex- ecuted and proved, if real estate be devised, according to the laws of this state, or if personal estate be bequeathed, ac- cording to the laws of this state, or of the country, state or territory in which the will shall be made.^ Authenticated copies of such wills and the probate there- of shall be recorded in the same manner as wills executed and proved in this state, and shall be admitted in evidence in the same manner and with like effect. Any such will may be contested and annulled within the same time and in the same manner as wills executed and proved in this state ; * 1 Story's Conflict of Laws, §§ 391, 465, 473 ; Nat v. Coons, 10 Mo. 543. 2 Story's Conflict of Laws, § 468. 3 Rev. St. 1909, § 567 ; Emmons v. Gordon, 140 Mo. 490, 41 S. W. 998, 62 Am. St. Rep. 734. 4 Rev. St. 1909, §§ 568, 569 ; Gaven v. Allen, 100 Mo. 293, 13 S. W. § 83 FOREIGN WILLS 71 and a copy of such record is conclusive proof of the will, and no new probate is necessary/' But if a will be made in another state and the testator moves to this state and dies, the will must be probated here." § 82. Law of Domicile. — In general, the law of the dom- icile governs the rule of succession to personal estate, in case the deceased died intestate. It will be observed that under our law the question of the testator's domicile does not enter into or at all affect the validity of a will. In a de- vise of lands the statute is declaratory of the rule that a will of real estate must be made according to the lex rei sitae — the law of the place where the land is situated.'^ But a will of personalty will be valid if made in accordance with the laws of this state or of the place where it is made, without regard to the place of the testator's domicile. A will so far as concerns realty, has no extra territorial force or validity, and is inoperative beyond the jurisdiction where it is pro- bated. In order to convey title to land, a will must be ex- ecuted, attested and probated in the manner prescribed by the law of the state where the land is located. And an ex- ecutor appointed in one state cannot sue for or intermeddle with the property of the testator, whether real or personal, in another state, unless the will be there proven or the laws of that state authorize such action without probating anew.« § 83. The Probate of a Will in another State is a Judi- cial Proceeding to the record of which "full faith and cred- it" is to be given, when certified agreeably to the act of con- gress, and it need not be recorded here to admit it in evi- dence.'' This statute applies to a will probated in a foreign country.^** 501 ; Cohen v. Herbert. 20.j ^lo. 537. 104 S. W. 84. 120 Am. St. Rep. 772; Stevens v. Larwill. 110 Mo. App. 140. 84 S. W. li:5. 5 Applegate v. Sinitli, .31 Mo. 166; Stevens v. Oliver, 200 Mo. 492. 98 S. ^Y. 492. 6 Stewart v. Pettns. 10 Mo. 755. 7 Nat V. Coons. 10 Mo. 54.S ; Kmnions v. Gordon, 140 Mo. 400, 41 S. W. 998. 62 Am. St. Kep. 734. 8 Emmons v. Gordon. 140 Mo. 490. 41 S. W. 998. 62 Am. St. Rep. 734 ; Cabanne v. Skinker. 56 Mo. 367. n Haile v. Hill. 13 Mo. 612 ; Wrijibt v. Rutfiers. 14 Mo. 587 ; Prad- street v. Kinsella. 76 Mo. 63 ; I>^wis v. City of St. I>ouis. 69 Mo. 595 : Drake v. Curtis. 88 Mo. 644 ; Matney v. Graham. 50 Mo. 559 : Gaven V. Allen, 100 Mo. 293. 13 S. W. 501 ; Cohen v. Herbert, 205 Mo. 537. 104 S. W. 84, 120 Am. St. Rep. 772. 10 Gaven v. Allen, 100 Mo. 293. 13 S. W. 501. 72 THE CONTESTING OF WILLS § 84 CHAPTER X OF THE CONTESTING OF WILLS } 84. Contest — Within what time — Limitation. 85. Same — Matters of practice. 86. The petition. 87. Issues to be foraied and submitted. 88. Open and close — Procedure. § 84. Within what Time — Limitation. — The validity of a will duly proven in the projjate court can only be contested in a proceeding instituted for that purpose under the stat- ute/ which provides that if any person interested in the pro- bate of any will shall appear within two years after the pro- bate or rejection thereof, and by petition to the circuit court of the county, contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, or if nei- ther party require a jury, by the court. The verdict of the jury, or the finding and judgment of the court, shall be final, saving to the court the right of granting a new trial, as in other cases, and to either party an appeal, in matters of law to the supreme court or court of appeals. If no person shall appear within the time aforesaid the probate or rejection of such will shall be binding, saving to infants, married wo- men, or persons of unsound mind, a like period of two years after their respective disabilities, are removed.^ There is no appeal from the decisions of the probate court either es- tablishing or rejecting a will, and it can only be contested or established contrary to the action of that court by a pro- ceeding in the circuit court within the statute, where the case is tried de novo.^ An unsuccessful contest of a will by 1 Rev. St. 1909, §§ 5.55, 556 ; In re Duty's Estate, 27 Mo. 43 ; Stovve V. Stowe, 140 Mo. 594, 41 S. W. 951 ; Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. St. Rep. 576; Stevens v. Larvvill, 110 Mo. App. 140, 84 S. W. 113 ; Cohen v. Herbert, 205 Mo. 537, 104 S. W. 84, 120 Am. St. Rep. 772; Hans v. Holler, 165 Mo. 47, 65 S. W. 308. 2 Rev. St. 1909, § 557. 3 In re Duty's Estate, 27 Mo. 43 ; Kenrick v. Cole, 46 Mo. 85 ; State ex reL Hamilton v. Guinotte, 156 Mo, 513, 57 S. W. 281, 50 Lu R. A. § 85 THE CONTESTING OF WILLS T3 a legatee does not defeat his right to a legacy given to him by the will.* But one accepting a benefit under a will is estopped from asserting a claim repugnant to its provisions.* § 85. Matters of Practice in Contest. — The validity of a will may be contested at the time it is ofYered for probate, but after it has been admitted to probate the proceedings for contesting its validity under the foregoing provisions of the statute are matters of practice in the circuit court. The decisions in Missouri have not been uniform as to the practice and forms of procedure for contesting wills. ** But it is regarded as a proceeding at law, and not in equity, and persons interested in the estate of the deceased must be parties either as plaintiffs or defendants.'' The proceed- ing in the circuit court may be considered as in the nature of an appeal from the probate court, as the effect of it is to transfer the whole matter to the circuit court for trial de novo, and to render void the action of the probate court in relation to the will.^ And the probate court should suspend the functions of the executor and all proceedings under the will and appoint an administrator pendente lite,« who has a right, if the probate court so orders or the property is need- ed to pay debts, to take possession of the real estate, and must take charge of the personal property, collect rents, etc., and preserve it for those entitled to it, at the end of the 787 ; Norton v. Paxton, 110 Mo. 45G, 19 S. W. 807 ; Schaff v. Peters, 111 Mo. App. 447, 00 S. W. 1037. 4 State ex rel. Nichols v. Adams. 71 Mo. 620; Good Samaritan Hospital V. Mississippi Trust Co., 137 Mo. App. 185, 117 S. W. 637 ; Stone V. Cook, 170 Mo. 534, 78 S. W. 801, 64 L. R. A. 287. 6 Stone V. Cook, 179 Mo. 534, 78 S. W. 801, 64 L. R. A. 287. 6 Harris v. Hays, 53 ]Mo. 90. 7 Eddie v. Parke's Ex'r. 31 Mo. 513 ; Garvin's Adm'r v. Williams, 50 Mo. 206: Rocers v. Dively, 51 Mo. 193; Young v. Ridenbaugb, 67 Mo. 574 ; Applebv v. Brock, 76 Mo. 314 ; Wells v. Wells, 144 Mo. 19S 45 S. W. 1095; Moore v. McNulty, 164 Mo. Ill, 64 S. W. 159; Gordon v. Rurris, 153 Mo. 223. 54 S. W. 546 ; Watson v. Alder.son. 146 Mo. 3.33. 48 S. W. 478, 69 Am. St. Rep. 615: Roberts v. Bart- lett, 190 Mo. 680, 89 S. W. 858; Knapp v. St. Louis Trust Co., 199 Mo. 640, 98 S. W. 70 : Hans v. Holler, 165 Mo. 47. 65 S. W. 308. 8 Harris v. Hays, 53 Mo. 90; Lamb v. Helm. 56 Mo. 420; Benoist V Murrin 48 Mo. 48 ; Tinsrley v. Cowgill, 48 Mo. 291 ; State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S. W. 281. 50 L. R. A. 787. 9 Rogers v. Dively. 51 Mo. 193; Lamb v. Helm. 56 Mo. 420: In re Soulard's Estate," 141 Mo. 642, 43 S. W. 617 ; State ex rel. Alder- son V. Moehlenkamp, 133 Mo. 134, 34 S. W. 468. 74 THE CONTESTING OF WILLS § 86 suit.^° This should be done by the probate court having authority to i^^rant general letters.^-^ § 86. The Petition. — The plaintiff should file a petition, as in other cases, showing his interest in the estate, either at law or under the will, and set out names of the legatees, devisees, all the heirs or other persons interested in the es- tate, making them, together with the executor or adminis- trator, parties defendant, and state when the will was pro- bated or rejected, and also allege the grounds of objection to the validity of the will,* if the object be to defeat it, or if it be to establish a rejected will, allege the facts showing the due execution of the will, etc.^- The following forms of petition may be readily modified to meet any case: Petition to Contest Will In the Circuit Court of Coun- ty, jVIissouri. Term, 19—. S. S , Plaintiff, vs. (Name the executor and lega- tees or persons interested un- der the will as defendants.) ^ S. S., your petitioner, states that he is a child and heir at law, and as such is interested in the estate of R. R.. late of , de- ceased ; that heretofore, to wit: on the day of , 19 — , and within five years from this date, a certain instrument in writ- ing was admitted to probate by the court of the — coun- ty, at the ' — term, 19—, thereof, and adjudged to be the last will and testament of the said R. R., deceased and letters testamenta- ry thereon were, on the day of , 19 — , granted by the said court to J. D., an executor named in the said supposed will; that A. B., C. D., etc., are and were by the said supposed will made legatees, etc., (set out the names of the legatees and their in- 10 In re Soulard's E.state. 141 Mo. 642, 4.3 S. W. 017; Union Trust Co. V. Soderer, 171 Mo. G75, 72 S. W. 499. 11 State ex rel. Hamilton v. Guinotte, 1.56 Mo. .51.3, .57 S. W. 281, 50 L. R. A. 787. 12 Watson V. Alderson, 146 Mo. .333, 48 S. W. 478, 69 Am. St. Rep. 615 ; Barkley v. Donnelly, 112 Mo. 561, 19 Mo. 305. * Where the contestant desires to set aside the will on the ground of fraud, the facts constituting the fraud must be pleaded, and, when specified, the pleader will be held to the precise specifica- tion. Story V. Story, 188 Mo. 110, 86 S. W. 225. An allegation that the testJitor was of unsound mind and had not suflicient understand- ing to comprehend the business in which he was engaged, or who were the natural objects of his bounty, or what property he had, or what disposition he was making of it, was broad enough to admit proof showing senile dementia. Conner v. Skaggs, 213 Mo. 334, 111 S. W. 11.32. § 87 THE CONTESTING OF WILLS 75 terests under the will in the estate.) And the said S. S. further states that at the time the said supposed will was suijscribed by the said K. K., in his lifetime, and also at the time tlie same was pub- lished and declared to be his last will and testament, the said K. R. was not of sound mind, but on the contrary thereof, was of unsound mind, and wholly incapable of nialdng a testamentary disposition of his affairs (or stale the objections to the will); and the said S. S. pray.s that the probate of the said supposed will may be revoked and set aside, and that said instrument be declared inoperative and held for naujiht, etc. S. S.. Plaintiff. By A. H., his Att'y. S. S., your petitioner, states that heretofore, to-wit: On or about the day of , 19 — , one K. R. diel. 164 Mo. 398, 64 S. W. 104; We.st v. West, 144 Mo. 119. 4(') S. W. 1.39; Cash v. Lust, 142 Mo. 630. 44 S. W. 724, 64 Am. St. Rep. 576. 2.-5 Rev. St. 1909, § 558; Bridwell v. Swank. 84 Mo. 455; Muller v. St. Louis Hospital Ass'n, 73 Mo. 242. 24 Gamache v. Gambs. 52 Mo. 287; Garvin's Adm'r v. Williams, 50 Mo. 206. 2 5 Harris v. Hays, 53 Mo. 90; Watson v. Alderson, 146 Mo. 333, 48 S. W. 478, 69 Am. St. Rep. 615; Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. St. Rep. 576. 2 6 Gordon v. Burris, 141 Mo. 602, 43 S. W. 642. 78 THE CONSTRUCTION OF WILLS § 89 CHAPTER XI OF THE CONSTRUCTION OF WILLS § S9. Authority of adjudged cases. 90. General rules of construction. Dl. Words which pass a fee. 92. Estate for life or less. 93. Personal effects — Residue — After acquired estate. 94. Description of devisee or legatee. 95. Same — "Children," how construed. 96. Same — Other relations how named. "Heirs," "Next of Kin," "Cousins," etc. 97. Same — "Family," "Legal Representatives," etc. 98. Ambiguity, uncertainty of description of legatee. 99. Interlineations or erasures. 100. Remainders — Lapsed legacies, 101. Same — May lapse when. 102. Contributions by devisees and legatees. 103. Lineal and collateral warranties. § 89. Authority of adjudged cases. — Chancellor Kent says, the construction of wills is so much governed by the language, arrangement and circumstances of each particular instrument, which is usually very unskillfully and very in- coherently drawn, that adjudged cases become of less author- ity and are of more hazardous application, than decisions upon any other branch of the law.^ Such being the case we shall not attempt a reference to any considerable number of judicial decisions bearing upon the construction of wills and legacies. There are, however, some general rules of construction ap- plicable to wills, which have been adopted by text writers as elementary principles, and seem to be well sustained by the weight of the authorities both in England and in this country. § 90. General Rules of Construction. — We give the fol- lowing, taken principally from Jarman on Wills: 1. A will must be construed according to the law in force when the testator died.^ The authorities are conflicting upon this point. 1 4 Kent, Com. 564 ; Garth v. Garth, 139 Mo. 456, 41 S. W. 238 ; Armor v. Frey, 226 Mo. 646, 126 S. W. 483. 2 Red field on Wills, 406, 407. 408, note; Watson v. Alderson. 146 Mo. 333, 48 S. W. 478, 69 Am. St. Rep. 615 ; Thomas v. Thomas, 149 Mo. 426, 51 S. W^ 111, 73 Am. St. Rep. 405. § 90 THE CONSTRUCTION OF WILLS 79 2. A will of real estate must be construed according to the law of the country or state where the jjroperty upon which it is intended to operate is situated,'' but a will of personalty is governed by the lex domicilii, or law of the place where the will is made.* 3. The construction of a will is the same at law and in equity. The rule for construini^ wills and deeds is substantial- ly the same.^ 4. A will speaks for some purposes from the period of ex- ecution, and for others from the death of the testator ; but never operates until the latter period. It speaks from his death unless by a fair construction its language indicates a contrary intention." 5. An heir is not to be disinherited without an express de- vise, or necessary implication ; such implication importing not natural necessity, but so strong a probability that an intention to the contrary cannot be supposed.'^ 6. Mere negative words are not sufficient to exclude the title of the heir or next of kin. There must be an actual gift to some definite object.^ 7. The intention of the testator must control, unless it con- flicts with the rules of law." This intention must be collected from the will itself; not from any particular clause, but from the whole will taken together ^^ and parol evidence is not ad- 3 Rev. St. 1909. § 567 ; Nat v. Coons. 10 Mo. 543 ; Cabanne v. Sldnker, 56 Mo. ;;57 : Stevens v. Oliver, 200 Uo. 492, 98 S. ^y. 492 ; Stewart v. Pettus, 10 Mo. 755. 4 Hev. St. 1909. § 567. 5 Walton V. Drnnitra. 152 Mo. 4S9. 54 S. W. 2.33 ; Peter v. Byrne, 175 Mo. 2,33, 75 S. W. 4.33, 97 Am. St. Rep. 576 ; State ex rel. Scott V. f.ichte, 226 Mo. 273, 126 S. W. 466. 6 Watson V. Alderson, 146 Mo. 333. 48 S. W. 478. 69 Am. St. Rep. 615: Webb v. Archibald. 128 Mo. 299. .34 S. W. 54; Cox v. Joue.s, 229 Mo. 53, 129 S. W. 495; Vitt v. Clark, 66 Mo. App. 214. 7 Bender v. Dietrick, 7 Watts & S. 284; Hasenritter v. Ilasenrit- ter. 77 Mo. 162. 8 Hurst v. Von de Veld. 1.58 Mo. 2.39. 58 S. W. 10.56; Willard v. Darrah, 168 Mo. 660, 68 S. W. 1023, 90 Am. St. Rep. 468. Harbison v. Swan, 58 Mo. 147; Briant v. (Jarrison, 150 Mo. 6.55, 52 S. W. 361 ; Walton v. Drumtra. 152 Mo. 489, 54 S. W. 233 ; Grace V. Perry. 197 Mo. 550, 95 S. W. 875. 7 Ann. Cas. 948; Dickersou v. Dickerson. 211 Mo. 483, 110 S. W. 700. 10 Alexander v. Alexander. 156 Mo. 413. 57 S. W. 110: Turner v. Tiniberlake, 53 Mo. 371 : Allison v. Chaney. 63 Mo. 279 : Schoeneich v. Field, 73 Mo. App. 452 : Thomas v. Thomas, 149 Mo. 426, 51 S. W. Ill, 73 Am. St. Rep. 405; Cross v. Hoch, 149 Mo. 325, 50 S. W. 80 THE CONSTRUCTION OF WILU3 § 90 missible to explain, vary or enlarge the words of the will, ex- cept in the case of a latent ambiguity. ^^ A misdescription of property may be corrected by extrinsic evidence. ^- 8. Technical words are not necessary to give efifect to any species of disposition' in a will ; that is, no particular words are necessary to pass an estate, but any words that show the in- tention of the testator are sufficient. 9. Courts will look at the circumstances under which the testator makes his will, as the state of his property, his family and affairs, and the like,^-'' and will examine all the different parts of a will, and give each clause its proper force,^* and one clause may qualify another and bring it in harmony with the general intention.^ ^ 10. In general, implication is admissible only in the ab- sence of, and not to control, an express disposition. Nor can an express and positive devise be controlled by the reason as- signed, or by subsequent ambiguous words, or by influence 786 ; Clotilde v. Lutz, 157 Mo. 439, 57 S. W. 1018, 50 L. R. A. 847 ; Oldham v. Trimble, 15 Mo. 2:50; Meiners v. Meiners, 179 Mo. 614, 78 S. W. 795 : Brooks v. Brooks, 187 Mo. 476, 86 S. W. 158 ; O'Day v. O'Day, 193 Mo. 62, 91 S. W. 921, 4 L, R. A. (N. S.) 922; Metz v. Wright. 116 Mo. App. 631, 92 S. W. 1125 ; Cox v. Jones, 229 Mo. 53, 129 S. W. 495. 11 Garth v. Garth, 139 Mo. 456, 41 S. W. 2.38; Rothwell v. Jami- son, 147 Mo. 601, 49 S. W. 503; Sanitarium v. McCune, 112 Mo. App. .332, 87 S. W. 93 ; Davis v. Davis, 8 Mo. 56 ; Krechter v. Grofe, 166 Mo. 385, 66 S. W. 358 ; Roberts v. Grume, 173 Mo. 572, 73 S. W. 662. 12 Creasy v. Alverson, 43 Mo. 13; Riggs v. Myers, 20 Mo. 239; Thomson v. Thomson, 115 Mo. 56, 21 S. W. 1085; Paulas v. Besch, 127 Mo. App. 255, 104 S. W. 1149. 13 McMillan v. Farrow, 141 Mo. 55, 41 S. W. 890; Rothwell v. Jamison. 147 Mo. 601, 49 S. W. 503 ; Nichols v. Boswell, 103 Mo. 151, 15 S. W. .343; Mueller v. Buenger, 184 Mo. 458. 83 S. W. 458. 67 L. R. A. 648, 105 Am. St. Rep. 541 ; Grace v. Perry, 197 Mo. 550, 95 S. W. 875, 7 Ann. Gas. 948; Sinnnons v. Cabanne, 177 Mo. .336, 76 S. W. 618; Board of Trustees of Methodist Episcopal Church v. May, 201 Mo. 360, 99 S. W. 1093. 14 Gaines v. Fender, 57 Mo. 342 ; Garth v. Garth, 139 Mo. 456, 41 S. W. 238 ; Brooks v. Brooks, 187 Mo. 476, 86 S. W. 158 ; O'Day v. O'Day, 193 Mo. 62. 91 S. W. 921, 4 L. R. A. (N. S.) 922; Dickerson V. Dickerson, 211 Mo. 483, 110 S. W. 700; Cox v. Jones, 229 Mo. 53, 129 S. W. 495. 15 Carr v. Dings, 58 Mo. 400; Carter v. Alexander, 71 Mo. 585; Walton V. Drumtra. 152 Mo. 489, 54 S. W. 233; Mersman v. Mers- man, 136 Mo. 244, 37 S. W. 909; Meiners v. Meiners, 179 Mo. 614, 78 S. W. 795. § 90 THE CONSTRUCTION OF WILLS 81 and argument from other parts of the will ; and accordingly such a devise is not affected by a subsequent inaccurate re- cital of, or reference to its contents/" though recourse may be had to such reference to assist the construction, in case of ambiguity or doubt. 11. The inconvenience or absurdity of a devise is no ground for varying the construction, where the terms are unambigu- ous. 12. That favor, or disfavor to the object, ought not to in- fluence the construction. 13. The rules of construction cannot be strained to bring a devise within the rules of law; '' but where the will admits of two modes of construction, that is to be preferred which will render it valid and prevent a total intestacy.'** 14. In general, words are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in an- other can be collected or ascertained from the will itself,'* and they are in all cases to receive the construction, which will give to every expression some effect, rather than one that will ren- der any of the expressions inoperative.- ° 15. Where a testator uses technical words, he is presumed to employ them in their legal sense, unless the context clearly indicates the contrary.-' 16. Words occurring more than once in a will, are pre- sumed to be used always in the same sense, unless a contrary intention appear by the context, or unless the words be applied to a different subject. And, on the other hand, where a testa- 10 Brooks V. Brooks. 187 Mo. 476. S6 S. W. 158: Sevier v. Wood- son, 20.5 Mo. 202. 104 S. W. 1, 120 Am. St. Rep. 728 ; Settles v. Shaf- er 22!) Mo. .501. 129 S. W. 897 : .Tackson v. T.ittell. 2i:i Mo. 589. 112 S W 53; Tisdale v. Prather, 210 Mo. 402. 109 S. W. 41. 17 Shepperd v. Fisher. 206 Mo. 208. 103 S. W. 989: Sevier v. Wood- son. 205 Mo. 202. 104 S. W. 1, 120 Am. St. Rep. 728 : Co.K v. Jones, 229 Mo. 53, 129 S. W. 49.5. isiio Kards v. Brown, 167 Mo. 447, 67 S. W. 245: Sheppevd v. Fisher. 206 Mo. 208. 103 S. W. 989; Young v. Rohinsoii, 122 Mo. App. 187. 99 S. W. 20. loT^ieiners v. Meiners. 179 Mo. 614, 78 S. W. 795; Sanitarium v. McCune. 112 Mo. App. 332, 87 S. W. 93. 2oreters v. Carr. 16 Mo. 54: Garth v. Garth, 139 Mo. 4o6. 41 S. W. 2.38: Cross v. Hoch. 149 Mo. 325. 50 S. W. 786: Briant v. Gar- rison. 150 Mo. 655, 52 S. W. 361. 21 Drake v. Crane, 127 Mo. 85, 29 S. W. 990. 27 L. R. A. 653 ; Cross V. Hoch. 149 Mo. 325, 50 S. W. 786; Zook v. Welty, 156 Mo. App. 703, 137 S. W. 989. Kel.Mo.P.G.— 6 S2 THE CONSTRUCTION OF WILLS § 9(J tor uses an additional word or phrase, he must be presumed to have an additional meaning.* 17. Words and limitations may be transposed, supplied or rejected, where warranted by the immediate context, or the general scheme of the will; but not merely on a conjectural hypothesis of the testator's intention, however reasonable, in opposition to the plain and obvious sense of the language of the instrument. '" 18. Words which it is obvious are mis-written (as dying with issue for dying without issue), may be corrected by con- struction. 19. The construction is not to be varied by events subse- quent to the execution; but the courts in determining the meaning of particular expressions, will look to possible cir- cumstances, in which they might have been called upon to afiix a signification to them. 20. Several independent devises, not grammatically con- nected, or united by the expression of a common purpose, must be construed separately, and without relation to each other; although it may be conjectured, from similarity of relation- ship, or other such circumstances, that the testator had the same intention in regard to both. There must be an apparent design to connect them. This relates chiefly to the question, whether words of limitation preceded by several devises relate to more than one of those devises. 21. That where a testator's intention cannot operate to its full extent, it shall take effect as far as possible. 22. That a testator is rather to be presumed to calculate on the dispositions in his will taking effect than the contrary ; and accordingly a provision for the death of a devisee will not be considered as intended to provide exclusively for lapse, if it admits of any other construction. 2 2 Briant v. Garrison, 150 Mo. 655, 52 S. W. 361 ; Nichols v. Bos- well, 103 Mo. 151, 15 S. W. 343 ; Tliomson v. Thomson, 115 Mo. 56, 21 S. W. 1085; Simmons v. Cabanne, 177 Mo. ;^.36, 76 S. W. «>1S ; Ro Bards v. Brown, 167 Mo. 447, 67 S. W. 245 ; Board of Trustees of Methodist Episcopal Church v. May, 201 Mo. 360, 99 S. W. 1093. * It is only where inconsistencies or ambiguities appear in the langnapce used in the will such as to cast doubt on the intention of the testator that surrounding circumstances can be considered to determine what that intention really was. Sanitarium v. MeCune, 112 Mo. App. 332, 87 S. W. 93 ; Brown v. Tuschoff, 235 :\Io. 449, 138 S. \V. 497; Krechter v. Grofe, 166 Mo. 385, 66 S. W. 358. § 91 THE CONSTRUCTION OF WILLS 83 23. A sub^ctiucnt clause apparently irreconcilable with pre- cedent provisions, will be construed in connection with them, but must be rejected if repugnant to the intention of the testa- tor, as derived from the whole will."^ 24. A will and codicil thereto must be construed together as parts of one and the same instrument.-^ In doubtful cases the intention of the testator can be best ascertained by the courts, and those interested in the construc- tion of wills, by putting themselves, so far as may be in the place of the testator and reading the whole will in the light of his surroundings at the time it was made, and when his in- tention and meaning can be thus clearly ascertained all tech- nical rules and decisions in other jurisdictions which stand in the way of its proper interpretation should be disregarded.-"' § 91. Words which Pass a Fee. — Formerly, in wills of real estate, if the devise contained no words of limitation or perpetuity, the devisee took only a life estate. But in order to carry out the intention of the testator, which is regarded as the polar star in the construction of wills, courts will seize upon any general expression of a grant as afifording evidence that a fee was intended. Thus, the words, "estate," "property," "land," "all my landed property," "all the estate called," "es- tate, real, personal and mixed," "all real estate," "parcel of land called," "all my other property," "all my lots," "residue,"' "all my real estate," "to my wife, to be at her entire disposal." "the tract of land on which I now reside," and innumerable words and phrases of similar import, have been held to pass real estate in fee simple to the devisee.-*' To avoid all controversy with respect to words necessary to pass a fee, it is enacted by the statute of Missouri that in all 2:! 2 Kedtiold on Wills. 277; Sevier v. WcHtdson. 20.1 Mo. 202, 104 S. \V. 1, 120 Am. St. Kep. 728; Brooks v. Brooks, 1N7 Mo. 470, SG s! AV. iks: Jjickson v. IJttell, 213 Mo. 589, 112 S. W. 515. 127 Am. St. Rep. (520; (Juiinon v. Albright, 183 Mo. 2.52, 81 S. W. 1102, «i7 L, R. A. 97, 105 Am. St. Rep. 471. 2 4 Rev. St. 1909, S 580; Von I'luil v. Hay, 122 Mo. 300, 20 S. W. 965; Brooks v. Brooks, 187 Mo. 470, 80 S. W. 158. -•5 Murphy v. Carlin, li:'. Mo. 112, 20 S. W. 780, 35 Am. St. Rep. 099; Lonj; v. Timms, 107 Mo. 512. 17 S. W. 898: Nichols v. Bos- well, 103 Mo. 151, 15 S. W. 343; Whitelaw v. Rodney. 212 Mo. 540, 111 S. W. 560; Clotilde v. T.utz. 157 Mo. 4:'.9. 57 S. W. lOls. 50 L. R. A. 847. 26 Ante, § 20; Shumate v. Bailey. 110 Mo. 411, 20 S. W. 17^; Guy V. Mayes, 235 Mo. 390, 138 S. W. 510. 84 THE CONSTRUCTION OP WILLS § 91 devises of lands or other estate in which the words, "heirs and assigns" or "heirs and assigns forever," are omitted, and no expressions are contained in the will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take effect after the death of the devisee to whom the same shall be given, it shall be understood to be the intention of the testa- tor thereby to devise an absolute estate in the same, and shall convey an estate in fee simple to the devisee for all such de- vised premises.^''' And a devise of the perpetual income of real estate is a devise of the fee, and a gift of the income for life passes a life estate, and the same rule applies to personal estate. ^^ A devise with an absolute power of disposal in the first taker renders a subsequent limitation repugnant and void.^® So where a condition subsequent is attached to a be- quest, and its performance becomes impossible by the act of God, the devisee or legatee will take unconditionally.^" A de- vise of real estate, upon condition that the devisee should not sell or incumber it, passes a fee, the condition being void as repugnant to the devise, and against public policy.^ ^ The right and power of alienation is a necessary and inseparable inci- dent to the ownership of land in fee.^- But a devise to a trus- tee may give the income to the beneficiary and prohibit his alienation of it and its seizure by his creditors in anticipation/'^ 2 7 Rev. St. 1909, §§ 579, 2870; Bradstreet v. Kinsella, 76 Mo. G3; Hunter v. Patterson, 142 Mo. :?10, 44 S. W. 2.^0; Yocum v. Siler, 160 Mo. 281, 61 S. W. 208; Simmons v. Cabanne, 177 Mo. 3.36. 76 S. W. 618; Roth v. Rauschenbusch, 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455. 2 8 Collier v. Grimesej', .36 Ohio St. 17. 20 Green v. Sutton, 50 Mo. 186; Tremmel v. Kleiboldt, 75 Mo. 255; Rubey v. Barnett, 12 Mo. 5, 49 Am. Dec. 112; Small v. Field. 102 Mo. 127, 14 S. W. 815; Roberts v. Crume, 173 Mo. loc. cit. 580, 73 S. W. 662; Settle v. Shafer, 229 Mo. 561, 129 S. W. S97 ; Cox v. Jones. 229 Mo. 53, 129 S. W. 495. 3 Hammond v. Hammond, 55 Md. 575. 314 Kent's Commentaries, p. 131; Anderson v. Gary, 36 Ohio St. 506, 38 Am. Rep. 602 ; Haeussler v. Missouri Iron Co., 110 Mo. 188, 19 S. W. 75, 16 L. R. A. 220, .33 Am. St. Rep. 431; McUvaine v. Smith, 42 Mo. 45, 97 Am. Deo. 295; Peuiejnet v. Berthold, 183 Mo. 61, 81 S. W. 874 ; Wool v. Fleetwood, 136 N. C. 460. 48 S. E. 785, 07 L. R. A. 444; Gannon v. Pauk, 200 Mo. 87, 98 S. W. 471. 32 Weatherford v. King, 110 Mo. 51, 24 U. W. 772; Pratt v. Saline Valley R. Co., 1.30 Mo. App. 175, 108 S. W. 1099. 3 3 Broadway Nat. Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504 ; Montague v. Crane, 12 Mo. App. 582 ; Schoeneich v. Field, 73 Mo. App. 452; Jarboe v. Hey, 122 Mo. .341, 26 S. W. 968. § 92 THE CONSTRUCTION OF WILLS 85 A devise by a husband to a wife, "if she shall not marry af^ain," is valid. The rule that a devise in restraint of mar- riage is void, does not apply to second marriages.-'* * § 92. Estate for Life or Less. — According to the rule in Shelley's case, a devise to a person for life,' with remainder over to his or her heirs generally, vested a fee in the devisee; the limitation over being void, the heirs of the devisee took by descent and not by purchase.^'' And where the devise was to A. and the heirs of her body, she took a life estate at common law and the estate tail or remainder went to the first or oldest child and not to all the children.-'*' But such is not the law in Missouri. A devise by will, of real estate to any person for life, and after his or her death to his or her children or heirs, or right heirs, in fee, vests an estate for life only in such dev- isee, and remainder in fee simple in such children." And a life estate may be created in direct terms or by necessary im- plication from the terms of the grant.^^ "So when land is conveyed" to A. and "to the heirs of his body forever," or "to have and to hold the same to her and her children, heirs of 84 Walsh V. Mathews, 11 Mo. 131; Diinioy v. Schoeffler, 24 Mo. 170 00 Vm Deo. 422; Gaven v. Allen, 100 Mo. 29.3, 13 S. W. oOl : Chrisuum v. Liudernian, 202 Mo., loo. cit. 623, 100 S. W. 1090, 10 L. R. A. (X. S.) 120.1. 119 Am. St. Rep. 822. sr.Riijsins V. MoClellan, 28 Mo. 23: Tesson v. Newman, G2 Mo. 198 ; Gannon v. Albright, 183 Mo. 238. 81 S. W. 1162, 67 D. R. A. 97. 105 Am. St. Rep. 471 ; Muldrow v. White. 67 Mo. 470. 3(5 Frame v. Humphreys, 164 Mo. 336, 64 S. W. 116. 37 Rev. St. 1909, § 578; Gregory v. Cowgill, 19 Mo. 415; Jones v. Waters, 17 Mo. 587; Reinders v. Koppelmann, 68 Mo. 482, 30 Am. Rep. 802 ; Cross v. Hoch, 149 :Mo. 341, 50 S. W. 786. 3 8 Cross V. Hoch. 149 Mo. 325, 50 S. W. 786; Harbison v. James, 90 Mo. 411, 2 S. W. 292; Russell v. Eubanks, 84 Mo. 82; Bean v. Kenmuir, 86 Mo. 666; Lewis v. Pitman. 101 Mo. 281, 14 S. W. 52; Schorr v. Carter, 120 Mo. 409. 25 S. W. 538: Talbott v. Hamill. 151 Mo. 292, 52 S. W. 203; Dozier v. Dozier, 183 Mo. 137, 81 S. W. 890; Pratt v! Saline Valley R. Co., 130 Mo. App. 175, 108 S. W. 1099. * The Supreme Court of Missouri, in an opinion by Judge Lamm, while upholding such provi.-^ions when the restraint is placed ui)on the widow's remarriage, does not believe a Uke restriction can be placed upon the widower by his deceased wife. (2 Pomeroy. Eq. Juris. [3d Ed.] 933, is cited.) Knost v. Knost. 229 Mo. 170. 129 S. "NV. 665. In the case of Sullivan v. Garesche. 229 Mo. 496, 129 S. AY. 949. a provision in a will giving a preference to two of testa- trix's daughters over her other two children, which was to be for- feited if they married, was held to be void, as in restraint of mar- riage. 86 THE CONSTRUCTION OF WILLS § 92 her body forever" passes a life estate to the mother;^'' but where the mother by holographic will bequeathed to her daugh- ter "all the rest of her real and personal estate for the sole use of herself and children," the daughter takes the fee in the land ; the words, "for the sole use of herself and children" do not create a trust nor invest in the children a remainder.*'* The introductory clause of a will, though often words of course, may be very useful in discovering the intention of the testator as to the quantum of the estate devised.*^ Words of general intent in the introduction, cannot affect the words of a specific devise, but only aid the construction where the words are doubtful. And to vary the construction so as to enlarge the estate into a fee, they should be in some way con- nected in the body of the instrument, or otherwise, with the more important devising clause.'* - § 93. Goods — Personal Estate — Residue. — The word "goods" is nomen generalissimum, and when construed in the abstract will comprehend all the personal estate of the testa- tor, as stocks, bonds, notes, money, plate, furniture, etc., etc. And a bequest of "all the testator's chattels," will have the same effect as a bequest of all the "goods and chattels." So the word "effects," standing alone, will pass the whole of the testator's residuary estate." But where, after devising all the real .estate he then had, the testator used these words: "I give and devise to my mother all my other property, consisting of horses, cattle, sheep and hogs, moneys and effects whatso- ever," land bought after making the will would not pass to the mother.** When it is doubtful whether the word "residue" applies to the whole estate or a part, it will be applied to the whole when there is no other residuary legatee.*^ The word "estate" is applicable alike to real and personal property or 3 Bone v. Tyrrell, 113 Mo. 175, 20 S. W. 79G; Hunter v. Patter- son. 142 Mo. 310, 44 S. W. 2.50 ; Miller v. Ensminger, 182 Mo. 195, 81 S. W. 422 ; Bramell v. Cole, 136 Mo. 210, 37 S. W. 924. 58 Am. St. Rep. 619 : Clarkson v. Clarkson, 125 Mo. 381, 28 S. ^Y. 446 ; Cross V. Hoch, 149 Mo. 325, 50 S. W. 786. 4 Small V. Field, 102 Mo. 104, 14 S. W. 815. 41 Vox V. Phelps, 17 Wend. (N. Y.) .393; Murphy v. Carlin, 113 Mo. 112, 20 S. W. 786, 35 Am. St. Rep. 699. 42 Barheydt v, Barheydt, 20 ^Yend. (N. Y.) 576. 43Crichton v. Symes, 3 Atk. 62; Bengough v. Walker, 15 Yesey, 507. 44 Smith V. Hutchinson, 61 Mo. 83. 45 Carr v. Dings, 58 Mo. 400 ; 2 Redfield on Wills, 448 ; Shumate V. Bailej-, 110 Mo. 411, 20 S. W. 178. § y-t THE CONSTRUCTION OF WILLS 87 to both,"'' and the word "and" will be read "or" when the in- tent of the testator reciuires it."'' And where the will gives the whole estate, real and personal, to the wife during her life, to use as she may think best and what remains to go to his children or others, she takes a life estate only in the realty/' But when a life estate is given with power of sale, an estate in fee passes, provided the power be executed, otherwise not.^'-* An executory devise to the unborn child of an unborn child is void as contravening the rule against perpetuities."'" Any estate or interest in property acquired after making the will passes in like manner as if held or possessed by the testa- tor at the time of making the will, unless the intention of the testator appears to have been otherwise.'^ § 94. Description of Devisee or Legatee. — The general rule is that devisees and legatees must answer the description and character given of them in the will.^- But to this, as to all general rules, tliere are exceptions. A party claiming a benefit under a will must show himself to be the person in- tended as the object of the testator's bounty. The language of the will may be so ambiguous and obscure as to leave a doubt as to the identity of the person for whom the benefit was in- tended. In such a case, if the matter cannot be determined from the will, after examining the whole instrument, recourse may be had to parol evidence. And if there be no person an- swering the description of the legatees in the legal sense of the term used in describing them, the situation of the testator's family and other circumstances may be shown to enable the 46 Shumate v. Bailov. 110 Mo. 411, 20 S. W. 178. 4 7Maguire v. Moore. lOS Mo. 2G7, IS S. W. SOT; Prosser v. Ilar- destv. 101 Mo. 50.3. 14 S. W. (52S. 4^p.ramell v. Adams. 146 Mo. 70, 47 S. W. 931: P.ramell v. Cole. i:;0 Mo. 201, 37 S. W. 024, 58 Am. St. Rep. GIO ; Schorr v. Carter. 120 Mo. 409, 25 S. W. 538; Foote v. Sanders, 72 Mo. 010; Burford v!" Ahlridse, 165 Mo. 419, 63 S. AV. 109. 4 9Gaven v Allen, 100 ilo. 293, 13 S. W. 501; Hazel v. Ilatran, 4i Mo 277 ; Harbison v. James. 90 .Mo. 411, 2 S. W. 292 ; Tisdale v. Prather, 210 Mo. 402. 109 S. W. 41; Ives v. Kimliu, 140 Mo. \vv- 29.3. 124 S. W. 23. ooLockridge v. Mice, 109 Mo. 162, IS S. W. 1145; Gates v. Sei- bert. 157 Mo. 254, 57 S. W. 1065. SO Am. St. Rep. 625 ; Shepperd v. Fisher. 206 Mo. 208. 103 S. W. 089. r-MYatson v. Watson, 110 Mo. 104. 19 S. W. 543; Shumate v. Bailey. 110 Mo. 411. 20 S. AV. 178 ; Webb v. Archibald. 128 Mo. 29V). 34 S. W. 54; Mueller v. Buenser, 184 Mo. 458, 83 S. W. 458, 67 L. R. A. 648. 105 Am. St. Rep. 541. 82 LehnhofE v. Theine, 184 Mo. 346, 83 S. W. 469. 88 THE CONSTRUCTION OF WILLS § 95 court to ascertain the legatees or devisees intended." Leg- atees and devisees are often described as "children," "grand- children," "nephews and nieces," "cousins," and the like. § 95. Same — Children. — A legacy or devise to "children" witliout any other description as a general rule means legiti- mate children, and will be construed to embrace all the testa- tor's children, as w^ell those born after as those born before the making of the will; and if the testator has such children, parol evidence cannot be received to show that a different class of persons was intended; but if he has illegitimate children only, it may be shown that they were the children intended. When children are designated as a class without further de- scription, the general rule is that all who answer the descrip- tion at the time the will takes effect, will be included.^* "Chil- dren" will not be construed so as to include grandchildren un- less the intention of the testator requires it. But to effectuate the intention of the testator, "heirs" will be construed to mean children, and children may be regarded as synonymous with heirs, and may include grandchildren, but where the word "children" is used and there are persons who answer it, grand- children cannot take under it, unless there is something in the will to show that they were also intended.^^ If the testator plainly refers to particular persons by the word children, (as if in enumerating them he names one that has died leaving grandchildren, or an illegitimate child.) and then makes a gift to his "said children," such grandchildren or illegitimate child will participate in the bequest. A step-child is not included in the term "children" in a bequest to the testator's children, if he have children of his own, unless by the terms of the will it shall appear that it was also intended. The term "grand- children" does not embrace "great grandchildren." We have seen that the word children does not include "grandchildren," it would seem but reasonable, therefore, that the term "grand- children" should not be construed to include children next to B3 Gordon v. Burris, 141 Mo. 602, 43 S. W. 642. 54 Allen V. Claybrook, ,58 Mo.' 124 ; 2 Jarman, 54; Carr v. Dings, 58 Mo. 400; Thomas v. Thomas, 149 Mo. 426, 51 S. W. Ill, 7.3 Am. St. Rep. 405; Gates v. Seibert. 157 Mo. 2.54, 57 S. W. 1065, SO Am. St. Rep. 625. 55 2 Williams, Ex'rs, 080, note, et seq. ; Maguire v. Moore, 108 Mo. 267, 18 S. W. 897; Rlngquist v. Young, 112 Mo. 25, 20 S. W. 159; Greffet v. Willman, 114 Mo. 106, 21 S. W. 459 ; Bone v. Tyrrell, 113 Mo. 175. 20 S. W. 796; Willard v. Darrah, 168 Mo. 660, 68 S. W. 1023. 90 Am. St. Rep. 468; Lich v. Lich, 158 Mo. App. 400, 138 S. W. 558. § 96 THE CONSTRUCTION OF WILLS 89 them in the line of descent. The several distinctions however, which have been mentioned with re^^ard to the enlargement of the word chiKlren are api)licable to a bequest to grandchildren ; so that if it appear from the will that the word grandchildren was not used in its usual sense, but for the purpose of em- bracing all the descendants of the persons described, it will have this effect. § 96. Same — Other Relatives. — The principle, already stated in regard to the restriction or enlargement of the terms "children," and "grandchildren," apply to the words "nei)hews and nieces." Therefore "great nephews and great nieces" are not to be considered as included in that description ; nor w'ill "grand nephews and grand nieces" be extended to include the children of such grand nephews and grand nieces, unless such appears from the context of the will to be the intention of the testator.^" But a child of a brother or sister of the half-blood would be included. We may suppose, also, that where a bequest is made to "cousins," the testator means "first cousins," unless the term may be enlarged by the context of the will so as to include relatives of a more remote degree. Un- der a bequest to "descendants," unrestricted, all the issue of the testator will be included, however remote.* Under a be- quest to the "issue" of A. all the descendants of A., viz., chil- dren, grandchildren, etc., are included. They take in such case, per capita and not per stirpes. Where the term "heirs" is used to denote succession or substitution, as "to the heirs of A.," it means such persons as would legally succeed to the property according to its nature and quality. But where the word is not used to denote succession, but to describe a leg- atee, and there is no context to explain it otherwise, there is no reason, it would seem, to depart from the natural and or- dinary meaning of the word "heir," and in such case, if there are more heirs than one, they take jointly.^ ^ "Nearest and lawful heirs," mean such as take under the law.^^ So where the grant was to the "nearest and lawful heirs of mine and c« Willard v. Darrah, 168 Mo. GGO, GS S. W. 1023, 90 Am. St. Rep. 468. 6T Brown v. Tu.schoff. 2:',.") Mo. 449, 138 S. W. 497. B8 Reinders v. Koppelinanu. 68 Mo. 488, 30 Am. Rep. 802. * The term "descendants," used in description of the legatees and devisi'es in a will, includes all who proceed from the body of the person named, as children, grandchildren, and great-grandchildren. Lich V. Lich, 158 Mo. App. loc. cit. 420, 138 S. W. loc. cit. 5G4. 00 THE CONSTRUCTION OF WILLS § 97 that of my said wife, share and share ahke," and the testator and his wife each had brothers and sisters, the wife afterward married and adopted a child of her second husband as her heir, it was held that said adopted child could not take under the will, but that said brothers and sisters or their legal repre- sentatives would take the estate. ^'^ A bequest to "next of kin" is confined to those who are entitled under the statute of dis- tribution, as nearest of kin, and does not include those who claim by representation, or the widow.''** So if a bequest is made by a testator to "my relations" without enumerating any of them, such of his relations as would be entitled under the statute of distribution if he had died intestate, will alone take the bequest. The same rule applies where the bequest is to "relations by blood or marriage," or "to my poor relations," or "my most necessitous relations," or "my poorest relations," unless the legacy be given to establish a charity for poor rela- tions. But the distribution must be per capita and not per stirpes. ^^ § 97. Same — Family, Etc, — The acceptation of the word "family" may be restricted or enlarged by the context of the will, so as in some instances to mean children, or in others, heirs, or it may even include relations by marriage. But in its ordinary sense it comprises the same persons as "kindred" or "relations," and accordingly the same rules of construction will apply to this as to those expressions. A devise to "A. and family" is a devise to A. and his wife and children, and evi- dence will be received to show who composed the family. '^- It would mean widow and children, but not a stepson. "^^ And if a grant or devise be to husband and wife they will take as joint tenants or in entirety, and the survivor will take the whole estate.®* And if husband and wife are co-devisees with their children or other persons, by reason of their legal iden- titv, they are both regarded as one person and together rep- 5 9 Reinders v. Koppelmann, 94 Mo. 338. 7 S. W. 288. 60 Garrick v. Lord Camden, 14 Vesey, 373. 61 2 Sugden on Powers (7tli Ed.) 246 ; Maguiye v. Moore, 108 Mo. 267, 18 S. W. 897; Records v. Fields, 155 Mo. 314, 55 S. W. 1021, 6 2 Hall V, Stephens, 65 :Mo. 670, 27 Am. Rep. 302. 63 Bates V. Dewson, 128 Mass. 3.34. 64 1 Bright, Husband & Wife, 25, and cases cited ; Rev. St. 1909. § 2878; Hume v. Hopkins. 140 Mo. 65, 41 S. W. 784; Bains v. Bul- lock, 129 Mo. 117, 31 S. AV. 342 ; Russell v. Russell, 122 Mo. 235, 26 S. W. 677, 43 Am. St. Rep. 581; Corrigan v. Tiernay, 100 Mo. 276, 13 S. W. 401. § 98 THE CONSTRUCTION OF WILLS 91 resent a single share or unit equal to the share of each of tiie others. "■'' A bequest by a husband to his "beloved wife," not mention- ing her name, ai)|)lies exclusively to the individual who an- swers the description at the date of the will, and will not ex- tend to an aftertaken wife, unless the will has been republished after the second marriage."" A bequest to "legal representa- tives" refers to persons entitled under the law of distribution ; but a bequest to "personal representatives" has been held to refer to the executor or administrator."^ But these, like all other words of general description, may be controlled by the context of the will. There are many other general terms, such as servants, inhabitants, etc., etc.. which are used as descriptive of legatees or devisees, all of which are governed in construc- tion by the principles and rules already given ; we do not. therefore, deem it important to pursue the subject in detail any further. § 98. Same — The Uncertainty in the Description of a Legatee, or ambiguity in a will, sometimes defeats altogeth- er the object of the testator, as where the ambiguity cannot be removed by parol proof. But in general, a mistake or ambiguity may be corrected or explained, either by the con- text or by parol evidence."^ Therefore, a misnomer of a legatee, or a mistake in his name will not defeat the legacy, provided it can be satisfactorily shown who was intended by the testator.*^^ There are two kinds of ambiguity, viz. : a patent ambiguity and a latent ambiguity. The former is something which appears on the face of the instrument it- self, which renders it ambiguous and unintelligible ; as, if in a will there are blanks left unfilled, in which it may be supposed the testator intended to place the name of a lega- tee or the description of property, or the like, but omitted to do so. Such an ambiguity cannot be explained by parol.'" 6 5 Bright, Husband & Wife, 27; Oihson v. Zimnierinan, 12 Mo. 385, 51 Aid. Rep. lOS ; Carner v. Jones, 52 Mo. OS ; Shroyer v. Xick- ell. 55 Mo. 2G4; Hall v. Stephens, 65 Mo. G70. 27 Am. Rep. 302. G« Isherwood v. Payne, 5 Vesey, 676. 6 7 JtMininjis V. Gallaniore, 3 Vesey. 146; Elstroth v. Younff, S3 Mo. App. 253; In re Kiesenberg's Estate. 116 Mo. App. 308, 90 S. W. 1170. 68 Thomson v. Thomson, 115 Mo. 56. 21 S. W. 10S5. 60 Cox V. Smith. 4 Johns. Ch. (N. Y.) 271; Ilockensmith v. Shisher, 26 Mo. 237 ; Gordon v. Burris, 141 Mo. 602. 43 S. W. 642. TOTole V. Hardy. 6 Cow. (N. Y.) 341; Brown v, Tuschoflf, 235 iNIo. 449, 138 S. W. 407. 92 THE CONSTRUCTION OF WILLS § 99 A latent ambiguity is where the instrument appears on the face of it to be intelHgible enough, but a difficulty arises in ascertaining the subject matter to which it appHes; as, if a devise be made to a person of the name of John Davis, and there should be more persons than one of that name. This devise, on the face of the will, is perfectly intelligible, but it is made uncertain as to the person for whom it was intend- ed, on account of there being more than one John Davis. Now, as this ambiguity is created by the proof of extrinsic facts, it may be removed in the same way.'^ § 99. Where Interlineations or Erasures appear on the face of a will, the presumption is that they were made sub- sequent to the execution of the instrument ; but where blanks appear to have been filled with ink and a handwrit- ing different from that of the body of the will, the presump- tion is that they were filled up before the final execution of the instrument. Rut this presumption may, in either case, be repelled by extrinsic evidence, showing the facts to be otherwise than as thus presumed. § 100. Remainders — Lapsed Legacies. — It was a rule of law, which seemed to be in harmony with the nature of a will, that, if the legatee or devisee died before the testator, the legacy or devise was extinguished. In such case the legacy is said to lapse. The testator might, if he saw fit, prevent a legacy from lapsing, by expressly, or by clear in- tendment, substituting a legatee for the one dying in his lifetime, as, if the bequest be to A. or his heirs, the word "or" implies a substitution of the heirs of A. to the legacy, and in the event of his death it would not lapse. And if a bequest be to two or more persons jointly, and one of them should die before the testator, the legacy or interest of the deceased legatee would not lapse, but would survive to the other legatee. But if a legacy be given to two or more as tenants in common, to be divided nominatim, in equal shares, if any one dies before the testator, what was intend- ed for him will lapse into the residue ; but not if the will gave it to the survivor in such event.'- A devise to a per- 7iTole V. Hardy, G Cow. (N. Y.) .341; 1 Greenl. Ev. § 297 et soq. ; Phill. Ev. 534-538, text and notos : Nichols v. Boswell, lO:! Mo. 151, 15 S. W. .343; Rothwell v. .Taniison, 147 Mo. 601. 49 S. W. 503. 72 Martin v. Lachasso, 47 Afo. 591; Bivdell v. Collier, 40 Mo. 287; State, to Use of Filloy, v. Aebly, 9 Mo. Ayp. 57; Lemmous v. Rey- nolds, 170 Mo. 227, 71 S. W. i;!5. g 100 THE CONSTRUCTION OF WILLS 93 son for life with remainder over to another, does not lapse on the death of the first taker durin.t^^ the testator's life, but the remainder takes effect upon the death of the testator." The law upon this subject is to some extent qualified by our statute. It provides that when any estate shall be de- vised to any child, grandchild, or other relative of the tes- tator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real or personal, as such devisee would have done in case he had survived the testator.'''* Alany cases may arise to which this statute is not appli- cable, and the condition of the bequest would have to be de- termined by the law independently of it ; as, where the gift is to a class, or to a person who is not related to the testator, or where the legatee should leave no lineal descendants. This statute substitutes the lineal descendants for the de- ceased legatee or devisee, and they take it as the devisee would have done if he had survived the testator. In such a case, the lineal descendants (or issue) of the deceased leg- atee, will take the bequest per capita. The term, "lineal de- scendants" includes children, grandchildren, etc., of the de- ceased, but not lineal ascendants, or collateral kindred. In case of a devise in fee-tail the devisee will take a life estate, and the remainder will pass in fee to the person to whom the estate tail would first pass by virtue of the devise."^ When a remainder in lands or goods is limited to take efifect on the death of any person without heirs or heirs of his body, or without issue or on failure of issue, the w^ords heirs or issue will mean heirs or issue living at the death of the person named as ancestor.'^® Where an estate is given by will to the survivors of a class to take effect on the death of the testator the words "surviving children" or the word "survivors" means those 7 3 Colonian v. Hntchcnson. .3 Bibb (Ky.) 209, 6 Am. Dec. 640. 7 4 Rev. St. 1909, § 54ynn, 200 .Mo. 456, 98 S. W. 585, 8 L. R. A. (X. S.) 117, 118 Am. St. Rep. 672, 9 Ann. Cas. 775. 8 Kev. St. 1909, § 2877. 81 Rev. St. 1909, § 2876; Garvin's Adm'r v. Willianis. 44 Mo. 465, 100 Am. Dec. 314; Aldridt,'e v. Aldrid^e, 202 Mo. 565, 101 S. W, 42; Buxton V. Kroeger, 219 Mo. 224, 117 S. W. 1147. § 101 THE CONSTRUCTION OF WILLS 95 In such case the death of the lejj;atee before the payment of the let^acy would not cause it to lapse. But where the future time of payment is defined in the will, the lej^acy will be vested or contingent, and will lapse or not, on the death of the legatee, according as. upon construing the will, it appears whetlur llie tcsUitdr meant to annex the time to the payment of the legacy, or to the bequest of it. In ascer- taining the intention (jf the testator in this respect, courts of equity have established two positive rules of construc- tion : 1. That a bequest to a person payable or to be paid at any certain determinate time, as at or when he shall arrive at the age of twenty-one years, or be married or the like, confers on him a vested interest, immediately on the testa- tor's death; it being considered as "debitum in presenti, sol- vendum in futuro," and therefore transmissible to his ex- ecutors or administrators. 2. That if the words "payable" or "to be paid" are omit- ted, and the legacy is given at twenty-one, or when or if the legatee shall attain the age of twenty-one, these expressions annex the time to the substance of the legacy, and make the legatee's right to depend on the happening of the event contemplated. It is a contingent legacy, which does not vest until the contingency upon which it depends occurs. Therefore, if the legatee dies before the event transpires upon which the legacy depends, his personal representatives will not be entitled to it, — it will lapse. These rules are subject to exceptions, however, arising from the intention of the testator, when the same can be discovered from the context of the will.^- It is a rule of law that if the bequest be to A. for life, and after the death of A., to B., the bequest to B. is vested on the death of the testator, and will not lapse by the death of B. in the lifetime of A.**-' But if a legacy be to A., and A. dies before the death of the testator, the bequest will lapse ; but if he leaves lineal descendants, it will go to them ; "^^ but if a legacy be to two jointly, and in the event of the death 82 2 Williams, Ex'rs, 1009; Harris v. Cook, OS Mo. App. :!Si, 71 S. W. llliC); Ilaniilton v. Lewis, I'.i Mo. 1S4. 83 2 Blackstone, Com. 5-12; 2 Williams. Rx'rs. 801; Martin v. Laehasse, 47 Mo. 501 ; Bredell v. Collier. 40 Mo. 2S7. 0* Kev. St. 1000. § 540; P.ramell v. Adams. 14(5 Mo. 70, 47 S. W. 931 ; Young v. liobiusou, 122 Mo. App. 187, 00 S. W. 20. 96 THE CONSTRUCTION OF WILLS § 102 of either, to the survivor, and one dies before the testator, the other will take it.®^ § 102. Contributions by Devisees and Legatees. — When the personal estate is insufficient to pay the debts, the unde- vised real estate w^ould be liable and must be resorted to be- fore that which has been devised can be taken, unless a dif- ferent arrangement has been made by the will. And when any property has been taken from a devisee for that pur- pose, all the other devisees and legatees must contribute to make the loss equal according to the value of the property received by each, unless specific devises and bequests be exempt, or different provision be made by the testator for making such contribution ; and if any be insolvent, the oth- ers must bear and divide the loss.*'' § 103. Lineal and Collateral Warranties with all their incidents, are abolished, but the heirs and devisees of every person who has made a covenant or agreement, will be an- swerable upon such covenant or agreement to the extent of the lands descended to them ; devisees stand on the same footing as an heir.*^ The covenant may be implied from the words, "grant, bargain and sell," according to the stat- ute, or it may be special or both, and in either case it will run with the land, and when there is a substantial breach, the owner who sustains the loss may have an action against the covenanter, or his estate if it has not been settled, but if it has been finally settled, he may proceed against the heirs and devisees, who will be liable for a proportionate share each, not exceeding the value of the estate received by them. The liability is limited to the purchase money and interest, but if the plaintiff has received rents, such rents will offset the interest, and the recovery will be confined to the actual loss, including costs and attorney fees.** 85 Martin v. Lacliasse, 47 Mo. 591 ; Dodge v. Sherwood, 176 Mo. .33, 75 .S. W. 417. 8 6 Rev. St. 1909, §S 581, 5S2 ; Levins v. Stevens, 7 Mo. 90; Boyer V. Dively, 58 Mo. 510 ; Breidenstein v. Bertram, 198 Mo. 328, 95 S. W. 828. 8 7 Rev. St. 1909, § 2875; State ex rel. Brouse v. Burnes, 129 Mo. App. 474, 107 S. W. 1094. 8 8 Collier v. Gamble, 10 Mo. 467; Dickson v. Desire's Adm'r, 23 Mo. 151, 66 Am. Dec. 661; Boyd v. Haseltine, 110 Mo, 203, 19 S. W. 822; Freeman v. MotRtt, 119 Mo. 280, 25 S. W. 87; Loring v. Groomer, 142 Mo. 1, 43 S. W. 647; Hazelett v. Woodruff, 1.50 Mo. .534, 51 S. W. 1048; Matlieny v. Stewart, 108 Mo. 73, 17 S. W. 1014; Coleman v. Clark, 80 Mo. App. 339; Whiteside v. Magruder, 75 Mo. App. 366. § 105 OF TRUSTS AND TKU8TEE8 97 CHAPTER XII OF TRUSTS AM) TRUSTEES CREATED BY WILL i 104. Trustees— Bequest for public charity. 105. Words creating trusts. 106. Trustees appointed — When. 107. Express and resulting trusts. 108. Same — By court of chancery. 109. Duty of trustee— Degree of care required. § 104. Trustees — Bequest for Public Charity. — A be- quest intended as a i)ublic charity will be upheld where the trust is clear and the objects sufficiently certain and definite to be carried into effect, and the will need not name any individual beneficiary, or point out any plan by which the objects of the bequest shall be accomplished.^ If the will appoint certain or ascertainable trustees with power to se- lect the beneficiaries and devise a plan for the application of the funds to the object named, the trustees may execute the charity in such manner as they see fit.- § 105. Words Creating a Trust.— The rule is that no particular form of words or expression is requisite to the creation of a trust, and that words of recommendation, re- quest, entreaty, wish, desire or expectation, will impose a binding duty upon the devisee by w^ay of trust, provided the testator has pointed out with sufficient clearness and certainty both the subject matter and the object of the trust.^ It is said that four things must concur to create a trust: 1, sufficient words to create a trust; 2, a definite subject; 3, a definite object; 4, the terms of the trust should be suf- 1 Clianibers v. City of St. Louis, 29 Mo. 589. 2 Powell V. Hatch. 100 Mo. 50l>. 14 S. W. 49 ; Sappington v. Sap- pington School Fund Trustees, 12?, Mo. 32. 27 S. W. 350; Howe v. Wilson, 91 Mo. 45, 3 S. W. 300, GO Am. Rep. 226. 3 A'andyck v. Van Beuren, 1 Caines (N. Y.) 84; Jarm. Wills, 336; 2 Redf. "Wills (2d Ed.) 410 ; Schmucker's Estate v. Reel, 01 Mo. 592 ; Cornelius v. Smith, 55 Mo. 528; Childs v. Wesleyan Cemetery As- sociation, 4 Mo. App. 74; Ames v. Scuddy, 11 Mo. App. 168; Harris Banking Co. v. Miller. 190 Mo. 640. SO S. W. 629, 1 L. R. A. (N. S.) 790 ; Zeideman v. Molasky, 118 Mo. Aii». 106, 94 S. W. 754 ; McKee V. Allen, 204 Mo. 655, 103 S. W. 76. Kel.Mo.P.G.— 7 98 or TRUSTS AND TRUSTEES § 106 ficiently declared.* There should be an intention to create a trust, or it should result by operation of law from the acts of the parties.^ An express trust not relating to per- sonal property must be proved by writing.^ § 106. Appointment of Trustee. — Courts of equity, as such, have power to appoint a trustee to discharge a trust created by will, for a trust will never be allowed to fail for want of a trustee." The statutes authorizing the summary appointment of trustees do not apply to trusts under wills ; ** and a court of equity has no inherent power to remove a trustee created by a will and appoint a successor without notice to such trustee.® Courts will guard property held in trust for a charitable purpose, and the fund arising therefrom, with a jealous eye, and will see that it is not misappropriated or diverted from its proper channel and humane objects. ^*^ The trustee must use such care and diligence in the man- agement of the trust property as ordinarily prudent men would employ in their own afifairs of like nature; ^^ and if any profits are made, they belong to the beneficiary.^- 4 In re Estate of Soulard, 141 Mo. 642, 43 S. W. 617 ; Condit v. Maxwell, 142 Mo. 266, 44 S. W. 467. 5 Condit V. INIaxwell, 142 Mo. 266, 44 S. W. 467 ; Porter v. Woods, 138 Mo. 539. 39 S. W. 794; Harris Banking Co. v. Miller, 190 Mo. 640, S9 S. W. 629, 1 L. R. A. (N. S.) 790. 6 Rev. St. 1909, § 2868 ; Mulock v. Mulock, 156 Mo. 431, 57 S. W. 122 ; Heil v. Heil, 184 INIo. 665, 84 S. W. 45 ; Forest v. Rogers, 128 Mo. App. 6, 106 S. W. 1105 ; Rector, etc., of Mt. Calvary Church v. Albers. 174 Mo. 331, 73 S. W. 508; Crowley v. Crowley, 131 Mo. App. 178, 110 S. W. 1100; Carroll v. Woods, 132 Mo. App. 492, 111 S. W. 885. 7 Brandon v. Carter, 119 Mo. 572, 24 S. W. 1035, 41 Am. St. Rep. 673 ; Harwood v. Tracy, 118 Mo. 631, 24 S. W. 214 ; United States Casualty Co. v. Kacer, 169 Mo. 301, C9 S. W. 370, 58 L. R. A. 436, 92 Am. St. Rep. 641. 8 Rev. St. 1909. §§ 11919, 11920 ; Hitch v. Stonebraker, 125 Mo. 128, 28 S. W. 443; Brandon v. Carter, 119 :Mo. 572, 24 S. W. 1035, 41 Am. St. Rep. 673. 9 Hitch V. Stonebraker, 125 Mo. 128, 28 S. W. 443; Brandon v. Carter, 119 Mo. 572, 24 S. W. 1035, 41 Am. St. Rep. 673. 10 Diffenderfer v. Board of Bresident, etc., of St. Louis Public Schools, 120 Mo. 447, 25 S. W. 542. 11 Finley v. Schlueter, 54 M,o. App. 4.55; Bates v. Hamilton, 144 Mo. ]. 45 S. W. 641, 66 Am. St. Rep. 407: Donaldson v. Allen, 182 Mo. 626, 81 S. W. 1151. 12 Connecticut :\Iut. Life Ins. Co. v. Smith, 117 Mo. 261, 22 S. W. 623, 38 Am. St. Rep. 656 ; Patterson v. Booth, 103 Mo. 402, 15 S. W. § 106 OF TRUSTS AND TRUSTEES 9^ If he buys the trust property, he will hold it in trust at the option of the cestui que trust ;^^ or if he uses trust funds in the purchase of realty, the beneficiary is entitled to a special lien to secure the repayment of the funds. ^^ A trustee cannot, as a general rule, act in the dual ca- pacity of seller and buyer at a sale conducted by himself.^-' But he may employ an agent when necessary, and he will not be liable for losses occurring from his act, if the agent selected was a proper one.^® A power given by the will to the executors and trustees to sell and reinvest, does not confer on them the power to change the character of the estate and convert it into a cor- . poration.^'^ A court of equity cannot make a will for the testator, nor substitute an outside charity for the one created by the will, but where a valid charity established by will cannot be car- ried out exactly in detail, the court may provide that the substantive purpose shall be affected if it can be done in some different way.^^ And if the property devised is of a perishable nature, the trustee may convert it into a sub- stantial, enduring revenue producing investment.^" The court may direct a sale of the property or modify the direc- tions of the founder of the charity concerning the disposi- tion of it, when there is a reasonable necessity for do- ing so.^" 543; South Joplin Land Co. v. Case, 104 Mo. 572, IG S. W. 390; Green Tree Brewing' Co. v. Dold, 45 Mo. App. 603. 13 Darling v. Potts, 118 Mo. 506, 24 S. W. 461; Midland Nat. Bank of Kansas City v. Brightwell, 148 Mo. 358, 40 S. W. 094, 71 Am. St. Rep. 608. 14 Darlinf? v. Potts, 118 Mo. 506, 24 S. W. 461; Huetteman v. ^■ies- selniann, 48 Mo. App. 582; Patterson v. Booth, 103 Mo. 402. 15 S. W. 543. 15 McKee v. Spiro, 107 Mo. 452, 17 S. W. 1013; Enneau v. Rieser. 105 Mo. 659, 16 S. W. 854; Hill v. Rich Hill Coal Mining Co., 119 Mo. 9, 24 S. W. 223 : Bnrford v. Aldridge, 165 Mo. 419, 63 S. W. 109 ; Newton v. Rebenack. 90 ^lo. App. 650. 10 Anderson v. Roberts, 147 Mo. 486, 48 S. W. 847. iTGaresche v. I>evering Inv. Co., 146 Mo. 436, 48 S. AY. 653, 46 L. R. A. 232. 18 Women's Christian Ass'n v. Kansas City. 147 Mo. 103. 48 S. W. 960; Lackland v. Walker. 151 Mo. 210. 52 S. W. 414; Chambers V. City of St. Louis, 29 Mo. 543. 1'-' Garesche v. Levering Inv. Co.. 146 Mo. 436, 48 S. W. 653, 46 L. R. A. 232; Mason v. Bank of Commerce. 90 Mo. 452. 3 S. W. 206. 20 Women's Clirlstian Ass'n v. Kansas City, 147 Mo. 103, 48 S. W. 960; Lackland v. Walker, 151 Mo. 210, 52 S. W. 414. 100 OF TRUSTS AND TRUSTEES § 107 § 107. Express and Resulting Trusts. — Parol evidence is not admissible to establish an express trust. ^^ But a failure to make a written declaration of the trust will not prevent a trust from resulting- by operation of law." Re- sulting trusts may be established by parol testimony; but the evidence must be clear and leave no room for doubt as to the nature of the transaction. ^^ An implied or constructive trust arises where one party has obtained money which rightfully belongs to another ; 2* or where the consideration for the purchase of land is paid by one party and the land is conveyed to another who holds the title for the benefit of him who paid the consideration, or where the wife's money was used to pay for land and the title was conveyed to the husband, in which case he would hold the title in trust for her and her heirs. -^ But when the husband or parent furnishes the purchase money, and the title is conveyed to the wife or child, the presumption is that it was intended as a provision for the wife or child, but this presumption may be overcome by parol testimony and the attending circumstances.-^ Where an estate is given 21 Curd V. Brown, 148 Mo. 82, 49 S. W. 990; Mulock v. Mulock, 156 Mo. 431, 57 S. W. 122; Hillman v. AUeu, 145 Mo. 638, 47 S. W. 509 ; Rector, etc., of Mt. Calvary Church v. Albers, 174 Mo. 331, 73 S. W. 508 ; McKee v. Allen, 204 Mo. 655, 103 S. W. 76 ; Heil v. Heil, 184 Mo. 665, 84 S. W. 45. 22 Condit V. Maxwell, 142 Mo. 266. 44 S. W. 467; Heil v. Pleil, 184 Mo. 665, 84 S. W. 45 ; Plumb v. Cooper. 121 Mo. 668, 26 S. W. 678 ; Weiss V. Heitkamp, 127 Mo. 23, 29 S. W. 709 : Buuel v. Nester, 203 Mo. 429, 101 S. W. 69; Butler v. Carpenter, 163 Mo. 597, 63 S. W. 823. 2 3 Forrester v. Moore, 77 Mo. 651; King v. Isley, 116 Mo. 1.55. 22 S. W. 634 ; Bradley v. Bradley, 119 Mo. 58, 24 S. W. 757 ; Reed v. Painter. 129 Mo. 674, 31 S. W. 919; Owensby v. Cliewning, 171 Mo. 226, 71 S. W. 122 ; Viers v. Viers, 175 Mo. 444, 75 S. W. 395 ; Bunel V. Nester, 203 Mo. 429, 101 S. W. 69. 24 Boynton v. Miller, 144 Mo. 681, 46 S. W. 754; Prewitt v. Prew- itt, 188 Mo. 675, 87 S. W. 1000; Bircher v. St. Louis Sheet Metal Ornament Co., 77 Mo. App. 509. 2 5 Crawford v. Jones, 163 Mo. 577, 63 S. W. 838; Curtis v. Moore, 162 Mo. 442, 63 S. W. 80; James v. GrofE, 157 Mo. 402, 57 S. W. 1081; McGregor-Noe Hardware Co. v. Horn, 146 Mo. 129, 47 S. W. 957; Condit v. Maxwell, 142 Mo. 266, 44 S. W. 467; Garrett v. Garrett, 171 Mo. 155, 71 S. W. 153; Smith v. Smith, 201 Mo. 533, 100 S. W. 570 ; Hudson v. Wright, 204 Mo. 417, 103 S. W. 8 ; Free- land V. Williamson, 220 Mo. 217. 119 S. W. 560. 2 6 Curd V. Brown, 148 Mo. 82. 49 S. W. 990; Hall v. Hall, 107 Mo. 101, 17 S. W. 811; McDonald v. McDonald, 86 Mo. App. 122. § 1U9 OF TRUSTS AND TRUSTEES 101 to executors and trustees during the continuance of a life estate, the trust ceases at the termination of such estate and the trustees have no power to prolong their tenure of office or their care of the estate, or to interfere with the rights of the remaindermen by incorporating it, or to change the natue of the estate or property unless it is of a perishable nature, and then only to convert it into a pay- ing investment. ^^ § 108. Same — By Court of Chancery. — And the rule is that where trustees capable of taking the legal estate were originally appointed, so that a valid use w^as in the first in- stance raised, and the case was thus brought within the jurisdiction of a court of chancery, that court will supply any defect which arises in consequence of the death or dis- ability or refusal of the trustees to act.-^ And in a suit for the appointment of a trustee, all the parties beneficially in- terested should be made parties.-" And if the suit be for the removal of a trustee and the appointment of another, the former trustee should be a party in order to conclude his interest or revoke his authority ; cestui que trusts should be parties, as they are interested in the judicious manage- ment of the estate.^" * § 109. Duty of Trustee. — A trustee is not an insurer. He is bound to exercise the utmost good faith, may acquire no interest adverse to the trust, and must exercise such care and diligence in respect to the management and discharge of the trust as under all the circumstances, considering the magnitude of the trust, the interests involved and the con- sequences of mistake, would be reasonable — such as men of discretion and intelligence employ in their own affairs.^ ^ 2 7 Garesche v. LevoriiiK Inv. Co., 14G Mo. 4.*?G, 4S S. W. 653, 46 L. R. A. 232 ; Emmons v. Gordon, 140 Mo. 490, 41 S. W. 99S, 62 Am. St. Rep. 734. 2 8 Morrow v. Morrow. 113 Mo. App. 444, 87 S. W. 590. 2 9 Hill on Trustees, 195. 30 Brandon v. Carter, 119 Mo. 572, 24 S. W. 1035, 41 Am. St. Rep. 673. 31 Morrow v. Saline County Com'rs, 21 Kan. 4S4 : Taylor v. Ilite, 61 Mo. 142; Graham v. King, 50 Mo. 22, 11 Am. Rep. 401; Bales V. Perry, 51 Mo. 449; State ex rel. Townshend v. Meagher. 44 Mo. 356, 100 Am. Dec. 298; Shuey v. Latta, 17 Cent. L;iw Jr. 353; Fin- ley V. Schlueter, 54 Mo. App. 455; Reynolds' Appeal, 70 Mo. App. ♦ This decision holds that where a trustee refuses to act he is not a necessary party to a proceeding in equity to fill the vacancy. 102 OF TRUSTS AND TRUSTEES § 109 If the trustee has performed his duties faithfully in the management of his trust he should be allowed reasonable compensation or commission for his services, but if he fails to perform his duty he should not be allowed compensa- tion.^^ If he has lost the fund or estate of his ward and undertakes to exonerate himself, he must produce the most satisfactory proof that he was not in fault.^^ Whether he should be charged with interest on the trust fund and at what rate depends upon the circumstances ; if he could have obtained interest and failed to do so, he will be chargeable with it, and if he speculated with it, and no other way can be adopted to ascertain the profit which rightly belongs to the beneficiary, he may be charged with compound interest.^* There must, however, have been a willful breach of duty on the part of the trustee in order to justify charging him with compound interest upon accumulated trust funds or profits in his hands. ^^ A court of equity will, on application of any party in- terested, compel the execution of a trust, and restrain any diversion of the trust property from the appointed use.^*^ 576; Bates v. Hamilton, 144 Mo. 1. 45 S. W. G41, 66 Am. St. Rep. 407; Hiklenbrandt v. Wolff. 79 Mo. App. 333; Seehorn v. American Nat. Bank, 148 Mo. 256, 49 S. W. SS6. 3 2 In re Estate of Bowie, 74 Mo. App. 191; Kemp v. Foster, 22 Mo. App. 643. ss Dalrymple v. Craig, 149 Mo. 345, 50 S. W. 884; Garesche v. Lev- ering Inv. Co., 146 Mo. 436. 48 S. W. 653, 46 L. R, A. 2.32 ; Newman V. Newman, 1.52 jNIo. 398, 54 S. W. 19 ; Keet & Rountree Dry Goods Co. V. Gideon, 80 Mo. App. 609. 34 Kane v. Kane's Adm'r, 146 Mo. 605, 48 S. W. 446; Ulrici v. Boeckeler, 72 Mo. App. 661; Darling v. Potts, 118 Mo. 506, 24 S. W. 461 ; Bobb v. Bobb, 89 Mo. 411. 4 S. W. 511, 3 5Bobb V. Bobb, 7 Mo. App. 501; Ames v. Scudder, 11 Mo. App. 169. 3 8 Hildeubrandt v. Wolff, 79 Mo. App. 3.33; Seehorn v. American Nat. Bank, 148 Mo. 256, 49 S. W. 886. ^10 ELECTION BY WIDOW, ETC, 103 CHAPTER XIII OF ELECTION BY WIDOW TO ACCEI'T OR RENOUNCE THE WILL § 110. Roniinciatinn or acceptanco of will hy widow in Missouri. § 110. Renunciation or Acceptance of Will by Widow. — If a testator by will devise real estate to his wife, such devise will be in lieu of dower in his real estate of which he died siezed, or in which he had an interest at the time of his death, unless the testator by his will otherwise de- clare. That is, such devise will be in lieu of dower unless the will provides that she shall have it in addition to her dower in the real estate, and if the will does not so declare, if she prefers the devise to dower she need not file a formal acceptance; her failure to renounce the will within twelve months is an acceptance of it, but if she prefers dower to the devise she must, by writing, duly executed and acknowl- edged, as in case of deed for land, and filed in the office of the court in which the will is proven and recorded, within twelve months after the proof of the will, refuse to accept the provisions made for her by the wall.^ Although she niay accept the will she may afterward, within the year, re- nounce it and claim her dower; - and especially if she did not act with a full knowledge of the condition of the es- tate, and her rights under the will, and under the law.^ An insane widow cannot by her own act renounce the provi- sions of her husband's will, nor elect to take one-half of the estate in lieu of dower, but her guardian may elect for her as between the wmII and dower.* 1 Rev. St. 1909, §§ 3G0, 3G1 ; Dougherty v. Barnes, 64 :^Io. l.~)9: Lackland v. Stevenson. 54 Mo. 108 ; Ewing v. EAviug, 44 ;Mo. 2.j ; Price V. Woodford. 4'5 Mo. 247 ; Peniberton v. Pemberton, 29 ^lo. 408; Brant v. Brant, 40 JIo. 2G6; Lilly v. Menke, 120 Mo. 190, 2S S. W. 643, 994 : Allen v. Harnett, 116 Mo. 278, 22 S. W. 717 ; Hall V. Smitli, 103 Mo. 289, 15 S. W. 623; McKee v. Stuckey, 181 Mo. 719, 81 S. AV. 160 (contra) ; Ball v. Ball. 105 'Slo. 312. 65 S. W. 552. ■■i Bretz v. Matnoy, 60 Mo. 444 ; Brawford v. Wolfe, 103 Mo. 391. 15 S. W. 426 ; Hall v. Smith, 103 Mo. 2S9, 15 S. W. 623 ; Spratt v. Ivawson, 176 Mo. 175, 75 S. W. 642 ; Kgger v. Egger, 225 Mo. 116, 123 S. W. 928, 1,35 Am. St. Rep. 566. 3 Egger V. Egger, 225 Mo. 116, 123 S. W. 928, 135 Am. St. Rep. 566. 4 Young V. Boardman. 97 Mo. 181, 10 S. W. 48; Rannells v. Ger- ner, 80 Mo. 474. 104 ELECTION BY WIDOW, ETC. § HO It seems that a devise of real estate to the wife as long as she remains a widow, the rents and profits to be used in educating the children, will defeat dower unless she re- nounces the devise.^ And where the will gave all his prop- erty to the widow for life, and then one-half to go to a cer- tain church, and she renounced the will, being without children, and elected to take one-half of the testator's estate absolutely, the will operated on the other half, and the church took one-fourth, after paying the debts.^ Form of Renunciation of Provisions in a Will in Lieu of Dozver In the Matter of the Will^ ^^ ^^^ n-obate Court of County, and Estate of John w ^.^.^^^ ^^ Missouri at . Wells, Deceased. j I, Barbara Wells, widow of John Wells, deceased, late of Count.v and State of Missouri, do by this act and deed renounce and refuse to accept the provisions made for me by the will of the said John Wells proved in the Probate Court of the said county, wherein he devised to me certain real estate, to-wit: [Here describe the real estate] of which he was seized, or in which he had an in- terest at the time of his death, and I shall and do insist upon my right and claim of dower in the estate of the said John Wells, de- ceased. Witness my hand and seal this day of , A. D. 19 — . Barbara Wells. This should be acknowledged as in the case of a deed for land and filed in the court where the will is recorded. This provision has no reference to personal property, but applies only to real estate.'^ That is, if the will devise real estate to her, it will be in lieu of dower in the real estate, unless the will otherwise declare. But in other cases a pro- vision in the will in favor of the wife will never be con- strued by implication to be in lieu of dower or any other in- terest in his estate given by law; the design to substitute the one for the other must be unequivocally expressed in the will.« If a childless widow renounces the will and elects to take half the estate under the law, she ceases to be a doweress, 5 Bogart V. Bogart, 138 Mo. 419, 40 S. W. 91 ; McKee v. Stuckey, 181 Mo. 719, 81 S. W. IGO. 6 Lilly V. Menke, 143 Mo. 137, 44 S. W. 730. 7 Bryant v. Christian, 58 Mo. 98 ; Martian v. Norris, 91 Mo. 4G5, 3 S. W. 849. 8 Hasenritter v. Hasenritter, 77 Mo. 162 ; Ball v. Ball, 165 Mo. 312, 65 S. W. 5.52. § 110 ELECTION BY WIDOW, ETC. 105 and as an ordinary distributee under the law, she is not enti- tled, under the terms of the statute giving her the right of election, to the four hundred dollars alUnved to the widow.'' However, should a widow elect to take a child's part, she still can claim her widow's allowance.^" The right to elect to take a child's part or half the estate in lieu of dower de- pends upon her right to dower, and if she is not entitled to dower in the land she has no right of election. ^^ A sub- sisting right to dower is not a prerequisite to the right to demand the four hundred dollars allowed to the widow by statute, and the widow is entitled to this allowance al- though she accepts a devise in lieu of dower.^^ Griffith V. Canning, 54 Mo. 282 ; Reid v. Porter, 54 Mo. 265. 10 Hill V. Evjins. 114 Mo. App. 715, 91 S. W. 1022. 11 Von Arb v. Thomas, 16.3 Mo. 33, 63 S. W. 94; Payne v. Payne, 119 Mo. loo. cit. 179, 24 S. W. 781. 12 Hill V. Evans, 114 Mo. App. 715, 91 S. W. 1022; Lamar v. Belch- er, 154 Mo. App. 571, 136 S. W. 748. 106 PEOBATE COURTS, JURISDICTION, ETC. §111 CHAPTER XIV OF PROBATE COURTS, THEIR JURISDICTION, POWERS AND INCIDENTAL MATTERS § 111. Probate court — Its jurisdiction in Missouri. 112. Jurisdiction defined. 113. Courts of limited jurisdiction. 114. Exclusive jurisdiction. 115. No jurisdiction. 116. In habeas corpus. 117. Petition for writ of habeas corpus, lis. Qualifications of probate judge. 119. Election or appointment of special judge of probate. 120. Judge may practice law — When. 121. Judge disqualified. 122. Probate clerk — Appointment and duties. 123. Incidental duties of the probate judge. 124. Expenses of maintaining court. 125. Salaries. 126. Terms of court. 127. Powers of probate court. 128. Process — How issued and directed. 129. Docket to be kept. 130. Penalty for refusal of judge, or clerk, to perform official duties. 131. Fees allowed probate court in Missouri. § 111. Probate Court — How Created — Jurisdiction. — The constitution of the State of Missouri declares that the general assembly shall establish in every county a probate court, which shall be a court of record, and consist of one judge, who shall be elected. A probate court consisting of one judge, has been established in the City of St. Louis and in every county in the state. ^ Said court shall have jurisdiction over all matters pertaining to probate business, the granting of letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, cu- rators and guardians, and the sale or leasing of lands by ad- ministrators, curators and guardians; and, also, jurisdiction over all matters relating to apprentices. Probate courts shall be uniform in their organization, jurisdiction, duties and practice, except that a separate clerk may be provid- 1 Constitution of Missouri, art. 6, § .34; Rev. St. 1900, § 40.j5 ; AuU V. St. Louis Trust Co., 149 Mo. 1, 50 S. W. 2S9. § 113 PROBATE COURTS, JURISDICTION, ETC. 107 ed for, or the jufl,ro. 85, 16 S. W. .595. 24 Am. St. Rep. 366. 108 PEOBATE COURTS, JURISDICTION, ETC. § 113 by statute.® It is a general rule that the jurisdiction of such a court will not be a matter of presumption, but the record must show the existence of all the facts necessary to give the court jurisdiction, both of the person and of the subject matter.^" But a court of limited jurisdiction is not necessarily of in- ferior jurisdiction; ^^ and although the jurisdiction and powers of courts of limited jurisdiction are defined and prescribed by statute, and all their acts are void which overstep the bound- aries of the statute/^ yet when such a court once possesses itself of a case within its jurisdiction, and such fact affirma- tively appears, every presumption and intendment which per- tains to the acts of courts of general jurisdiction immediately attach with equal force to the acts of the inferior tribunal, ^^ and a liberal construction will be given to its acts as regards form and regularity of proceedings within its jurisdiction.^* And generally jurisdictional facts may be proved or disproved by evidence aliunde, for the purpose of sustaining or invalidat- 9 In re Estate of Glover, 127 Mo. 153, 29 S. W. 982 ; Ivie v. Ewing, 120 Mo. App. 124, 96 S. W. 481 ; Jenkens v. Morrow, 131 Mo. App. 288, 109 S. W. 1051. 10 Coil V. Pitman's Adin'r, 46 Mo. 51; McCloon v. Beattie, 46 Mo. .391; Hansberger v. Pacific R. Co., 43 Mo. 196; Powers v. Blakey's .\dna'rs. 16 Mo. 437 ; State ex rel. Renick v. St. Tx)uis County Court, 38 Mo. 402; State v. Metzger, 26 Mo. 65; Schell v. Leland, 45 Mo. 289 : Iba v. Hannibal & St. J. R. Co., 45 Mo. 469 ; Ex parte O'Brien, 127 Mo. 477, 30 S. W. 158 ; Patchen v. Durrett, 116 Mo. App. 437, 92 S. W. 721; Cunningham v. Pacific R. R., 61 Mo. 33; Gibson v. Yaughan, 61 Mo. 418 ; Haggard v. Atlantic & P. R. Co., 63 Mo. 302 ; State ex rel. Aull v. Shortridge, 56 Mo. 126; Baldwin v. Wlutcomb, 71 Mo. 651 ; Colville v. .Judy, 73 Mo. 651. 11 Brooks V. Duckworth, 59 Mo. 48; State v. Schneider, 47 Mo. App. 669; Young v. Boardman, 97 Mo. 181, 10 S. W. 48; Gordon V. Eans, 97 Mo. .587, 11 S, W. 64; Hammons v. Renfrew, 84 Mo. .332; Warden v. Missouri, K. & T. Ry. Co., 78 Mo. App. 604 ; Sappingtou v. Lenz, 53 Mo. Ar; . 44; Wise v. Loring, .54 Mo. App. 258; Corrigan v, Morris. 43 Mo. App. 456; Michael v. City of St. Louis, 112 Mo. 610, 20 S. W. 666 ; Leonard v. Sparks, 117 :Mo. 103, 22 S. W. 899, 38 Am. St. Rep. 646 ; Zeibold v. Foster, 118 Mo. -349, 24 S. W. 155 ; Cox v. Boyce, 152 Mo. 576, 54 S. W. 467, 75 Am. St. Rep. 483 ; Sherwood v. Baker, 105 Mo. loc. cit. 475, 16 S. W. 9.38, 24 Am. St. Rep. .399. 12 Jefferson County v. Cowan, 54 Mo. 234; City of St. Louis v. Koch. 169 Mo. 589, 70 S. W. 143. 13 Ellis V. Jones, 51 Mo. ISO; Brooks v. Duckworth, 59 Mo. 48; Johnson v. Beazley, 65 Mo. 250, 27 Am. Rep. 276 ; Cox v. Boyce, 152 Mo. 576, 54 S. W\ 407, 75 Am. St. Rep. 483. 14 Warden v. Missouri, K. & T. Ry. Co., 78 Mo. App. 664 ; Nichols V. Reyburn, 55 Mo. App. 1. § 114 PROBATE COURTS, JURISDICTION, ETC. 109 ing tlie proceedings of a tribunal of special and limited juris- diction/^ But when the court has once acquired jurisdiction, the only competent evidence of what the court has done is its record, which is conclusive as against any parol attack in a collateral proceeding.^® § 114. Exclusive Jurisdiction,— iW here a court is given original and exclusive jurisdiction over a particular matter or subject, as to hear and determine all suits and other proceed- ings instituted against executors or administrators upon any demand against the estate of a testator or intestate, no other court has original jurisdiction of such demand.^' Formerly, when probate courts were created by special acts in certain counties in Missouri, they were given original ex- clusive jurisdiction over probate matters, and the other courts, of course, were excluded.^® But it will be observed that neither the Missouri constitu- tion nor statute confers exclusive jurisdiction on probate courts as to the matters committed to said courts ; but, as the pro- ceedings in such matters are authorized and governed by stat- ute, and the probate court, and no other, is invested with pow- er to hear and determine such proceedings, it follows that as to such matters its jurisdiction is exclusive.^* But, of course, a court of general jurisdiction, possessing chancery ])owers, would have jurisdiction of such proceedings in equity in rela- tion to probate matters, as belong to a court of chancery, such, for instance, as a suit for the construction of an ambiguous will ; -° or to substitute a surety to the rights of a creditor in his equity against an estate ; ^^ or to enforce specific perform- ance of a verbal contract by deceased for the sale of land; ^- 15 Willis V. vSproule. 13 Kan. 2G4. 16 In re Watson. .10 Kan. 753, 1 Pac. 775; Missouri, K. & E. Ry. Co. V. Iloeretli, 144 Mo. 1.3G. 45 S. W. 10S5; Cox v. Boyce, 152 Mo. 576, 54 S. W. 467. 75 Am. St. Rep. 483. 17 Pearce v. Calhoun, 59 Mo. 271; Dodson v. Scroggs, 47 Mo. 2S5. isPearce v. Calhoun. 50 Mo. 271; Caldwell v. Hawkins, 73 Mo. 450 ; Ensworth v. Curd, 6S Mo. 282 ; Dodson v. Scroggs, 47 Mo. 285. loGarnett v. Carson, 11 Mo. App. 290. 20 First Baptist Church v. Robberson. 71 Mo. 326; Clark v. Hen- ry's Adm'r, 9 Mo. 340; Bredell v. Collier, 40 Mo. 287: Jamison v. Hay. 46 Mo. 546; Wager v. Wager, 89 N. Y. 161; Hamer v. Cook, lis Mo. 476, 24 S. W. 180; Citizen.s* State Bank v. Petti t, 85 Mo. App. 499 ; Clark v. Carter. 200 Mo. 515, 98 S. W. 594. 21 Miller v. Woodward. 8 Mo. 169. 22 Sehulter's Adm'r v. Bocku-inkle's Adm'r, 19 Mo. 647; Davidson V. I. M. Davidson Real Estate & Investment Co., 226 Mo. 1. 125 S. W. 1143, 136 Am. St. Rep. 615. 110 PROBATE COURTS, JURISDICTION, ETC. § 114 or to convey by will; -^ or to compel an executor to execute a trust under a will ; '* or make a deed pursuant to a sale under a will ; ^° or a suit to enforce an equitable charge against land of deceased ; -*^ or to order the sale of land belonging to mi- nors.-^ As a general rule, a mere grant of jurisdiction to a partic- ular court without words of exclusion as to other courts pre- viously possessing the like powers, will only have the effect of constituting the former a court of concurrent jurisdiction with the latter.-** And though other courts may have jurisdiction of a suit on an administration bond or of other matters in- volved in the administration of an estate, yet, when the pro- bate court has ample power in the premises, actions in other courts should not be encouraged. ^^ § 115. No Jurisdiction. — The probate court does not possess general chancery powers, and it has no jurisdiction of actions and proceedings purely equitable, and peculiarly cognizable in courts of equity, such as a suit to foreclose a vendor's lien against land belonging to the deceased,^" or in favor of the estate against land sold by deceased in his life- time.^^ or a suit in equity to follow trust funds in the hands of an administrator of a deceased trustee,^- or to enforce an equitable lien against land,^^ or to impeach a conveyance made by the deceased to defraud his creditors, •''* or of a claim against the estate of a deceased married woman, for which her sep- 2 3 Hiatt V. Williams, 72 Mo. 214, 37 Am. Rep. 438. 2 4 Mead v. Jennings, 46 Mo. 91. 2 5 Coil V. Pitman's Adm'r, 46 Mo. 51. 26 Clark V. Henry's Adm'r, 9 Mo. 340; Byerly v. Donlin, 72 Mo. 270. 2 7 Hamer v. Cook, 118 Mo. 476, 24 S. W. 180. 28 Wood V. Ellis, 10 Mo. 3S3 ; State v. Martin. 10 :Mo. .392; Hamer V. Cook, 118 Mo. 476, 24 S. W. 180 ; Miller v. Woodward, 8 Mo. 169 ; State ex rel. Renick v. St. Louis County Court, 38 Mo. 402; Rich- ardson v. Palmer, 24 Mo. App. 480. 2 9 Stratton v. MeCandless, 27 Kan. 296. 30 Ross V. .Tulian, 70 Mo. 209 ; Mt. Olive & St. L. Coal Co. v. Slev- in's Estate, 56 Mo. App. 107. 31 Leeper v. Lyon, 68 Mo. 216; Perry's Adm'rs v. Roberts, 23 Mo. 221 ; Ivie v. Ewing, 120 Mo. App. 124, 96 S. W. 481. 3 2 Butler V. Lawson, 72 Mo. 227; Jenkins v. Morrow, 131 Mo. App. 288, 109 S. W. 1051. 33 Trustees of General Assembly of Presbyterian Church of the U. S. V. McElhinney, 61 Mo. 540. 34 Brown's Adm'r v. Finley, 18 Mo. 375; George v. Williamson, 26 Mo. 190, 72 Am. Dec. 203 ; Merry v. Fremon, 44 Mo. 518 ; Zoll v. § 115 PROBATE COURTS, JURISDICTION, ETC. HI arate estate is alone bound in equity, ^^ or of a suit to set aside a final settlement for fraud ; •'" or of a suit to enforce an equi- table charge against real estate of deceased ; ^^ nor has it juris- diction of an action on an administrator's bond,^* though it has jurisdiction of a special proceeding under the statute against a former administrator and his sureties to recover as- sets.^® The proceeding permitted by the statute to discover alleged withheld or concealed assets is a summary method of bringing property into the estate, but was formerly held not to be available for the trial of property rights, and later decisions expressly hold that the right of property may be tried in such proceedings.'*'* Appeal lies from the decision of the probate court determining the rights of the parties.*^ But while the probate court possesses no general chancery powers,*- yet in the settlement of estates it may exercise pow- ers and jurisdiction formerly exercised only by courts of chan- cery — such as were formerly exercised in England by the ecclesiastical and chancery courts. •'^^ It has full control and ample jurisdiction to pass upon and adjust all matters involved in the administration of an estate." But the parties cannot confer jurisdiction by consent over the subject matter of a .Soper, 75 Mo. 4C(» ; Hall v. Farniors" & :Merch:uits' Bank. 14.') Mo. 418, 4G S. W. 1000; Jeukiiis v. Morrow, 131 Mo. App. 2SS, 109 S. W. 1051. 3 5 Davis V. Smith, 75 Mo. 219. 3 6 Ryerly v, Donlin, 72 Mo. 270. 3 7 Trustees of General Assembly of Presbyterian Cliurch of the U. S. V. McEJhinney, 61 Mo. 540; Ivie v. Ewing, 120 Mo. App. 124, 96 S. W. 481. 3 8 state ex rel. Lon^don v. Shelby, 75 Mo. 48.*]; State, to T'se of Hunter, v. Maulsby, 53 Mo. 500 ; State ex rel. Shinu v. Stafford, 73 Mo. 658. 30 Rev. St. 1909. §§ 70-74; Brown v. Weatherby, 71 Mo. 152. 4 Gordon v. Eans, 97 :Mo. 587, 4 S. W. 112. 4iTyi?ard v. Falor, 103 IMo. 234, 63 S. W. 672; In re Estate of Huffman. 132 Mo. App. 44, 111 S. W. 848; In re Clinton's Estate. 223 Mo. 371. 123 S. W. 1. 4 2Tru.stees of General Assenibly of Presbyterian Church of the U. S. v. McElhinney. 61 Mo. 540; Ivie v. Ewini:. 120 Mo. App. 124. 96 S. W. 481 ; Jenkins v. Morrow. 131 :Mo. App. 288, 109 S. W. 1051 ; In re E.state of Glover, 127 Mo. 1.53. 29 S. W. 982. 4 3 Pear ce v. Calhoun, 59 Mo. 271; Tittorington v. Hooker. 58 Mo. 593 ; Ensworth v. Curd, 68 Mo. 282 ; MilU'r v. Iron County. 29 Mo. 122; Mt. Olive & St. L. Coal Co. v. Slevin's Estate, 56 Mo. App. 107 ; Nichols v. Reyburn. 55 Mo. App. 1. 44 Pearson v. Haydel, 87 Mo. App. 495; Stowe v. Stowe, 140 Mo. 594. 41 S. W. 951. 112 PEOBATB COURTS, JURISDICTION, ETC. § 116 controversy where it has not been given by law.*' It may en- tertain a proceeding to construe a will and order distribution.**^ It is not necessary that the record of the proceedings in the probate court should affirmatively show all jurisdictional facts, for as to matters witliin the exclusive jurisdiction of that court, its orders and judgments are entitled to the same pre- sumptions and intendments as are those of courts of general jurisdiction.*" It has power over its judgments during the whole of the term at which they are rendered or given.*"* § 116. In Habeas Corpus. — Neither the constitution nor the statutes defining the jurisdiction of the probate court in Missouri expressly authorize it, or the judge, to issue the writ of habeas corpus. The principal object in creating that tribunal was to provide a means for the disposition of the matters enumerated in the constitution, and which relate to the administration of estates in guardianships ; but there is nothing in the constitution, no words of restriction, to pre- vent the legislature from conferring upon the judge of that court other duties, powers and functions. Therefore the leg- islature has constituted the judge a conservator of the peace, and authorized him to let to bail any party indicted for a bail- able offense in the county in which the indictment is pend- ing,*^ or when committed by a magistrate ; ^° and as a magis- trate (judge of a court of record) he may issue process for the apprehension of criminals, and hold them to bail, and require persons to give surety to keep the peace; ^^ and he may solem- nize marriages. ^^ None of these things have any connection whatever with the subjects mentioned as within the jurisdic- tion of the probate court, but are matters over which the leg- islature has entire and unlimited control, and might authorize 45 Lndd V. Torsee, 163 Mo. 506, 63 S. W. 831. 4 6 Hamilton v. Lewis, 13 Mo. 18.5; Dyer v. Carr's Ex'r, 18 Mo. 246; Overton v. Davy's Ex'r, 20 Mo. 273; Rose v. McHose's Ex'rs. 26 Mo. .590; Bryant v. Christian, 58 Mo. 98; Allison v. Chaney, 63 Mo. 279 ; Kenrick v. Cole, 46 Mo. 85 ; Rocheport Bank v. Doak, 75 Mo. App. 3.32 ; State ex rel. Board of Education of St. Louis v. Nast, 209 Mo. 708, 108 S. W. 563. 4 7 Cox V. Boyce, 152 Mo. 576, 54 S. W. 467, 75 Am. St. Rep. 483; Aull V. St. Louis Trust Co., 149 Mo. 1, 50 S. W. 289 ; In re Tucker, 74 Mo. App. .331 ; In re Ilesche's Estate, 73 Mo. App. 612. 4 8 Aull V. St. Louis Trust Co., 149 Mo. 1, 50 S. W. 289. 4 9 Rev. St. 1909. § 40ane, 44 Mo. App. 1. 7 Rev. St. 1909, § 4063. 8 Morris v. Lane, 44 Mo. App. 1. „ ^ .„^ ^/^o-. SI State ex rel. Latiinor v. Gray, 100 Mo. App. 98. 72 S. W. 1081 : Ansley v. Richardsou. \)T> Mo. App. 332. 08 S. W. 609; State ex rel. Henson v. Sbeppard, 192 Mo. 497. 91 S. W. 477. 118 PROBATE COURTS, JURISDICTION, ETC. § 122 § 122. Clerk of Probate Court.— The judge is required to act, ex-officio, as his own clerk. He may, however, by entry of record, appoint a separate clerk, who must be paid by the judge, and will hold his office at the pleasure of the judge. The clerk must take the oath required of other clerks of courts, and enter into a bond. When so appointed and qualified, he may discharge all the duties of clerk, and will have power and authority to do and perform all acts and duties in vacation which the judge of said court may perform in vacation, subject to the confirmation or rejec- tion of said court at the next regular term held thereafter.^' And where probate court is held at more than one place in the county, the judge may, by entry of record at either or each of said places, appoint a separate clerk for either or each of said places who shall be paid by the judge and hold his office at the pleasure of the judge, and must qualify and give bond, and may perform the duties as prescribed by law.^^ A section is incorporated in the statute having special reference to the city of St. Louis which provides that in cities having three hundred thousand inhabitants, or over, the office of probate clerk shall be filled by election."* § 123. Incidental Duties of the Probate Judge. — When- ever the judges of the county court or a majority of them shall not be able to hold any term of that court (by reason of sickness, absence or other cause) the probate judge of that county may hold said term of court and receive there- for the same compensation as a judge of the county court, l)Ut he will have no power to levy taxes except for ordinary county expenditures, and for support of the common schools. ^^ § 124. Expenses of Maintaining Court. — Every probate court shall have an official seal of some suitable device, and the neces.-ary expenses incurred by the court for books, stationery, furniture, fuel, and other necessaries, must be paid by the county court.*'' It has been held that postage is included in this requirement, and must be supplied by the county court." This court, at the expense of the county, must also provide for the judge of probate an of- 8 2 Rev. St. 1009, § 40.j!). 8* Rev. St. 1900, § 4072. 8 3 Rev. St. 1909. § 4071. s^ Rev. St. 1009, §§ 4001, 40G2. 86 Rev. St. 1909. §§ 400."), 4066. 8 7 Sayler v. Nodaway County, 159 Mo. 520, 60 S. W. 10.^7. § 126 PROBATE COURTS, JURISDICTION, ETC. 119 fice at the county seat except in counties where such courts for the transaction of probate business are held at a place other than the county seat, and in these counties the court must also keep an office at the place where courts are held, and keep there all the books, records, and papers pertain- ing to the business transacted, and the seal of said court,*^ § 125. Salaries. — The probate judge is entitled to re- cei\'e out of the fees collected by his office a yearly salary ecjual to the annual compensation provided by law for a judge of the circuit court having jurisdiction in the same county. The probate judge is empowered to deduct out of the fees collected by him in addition to his salary all reasonable and necessary expenses for clerk hire. The pro- bate clerk receives his salary from the probate judge. ^" In counties containing a city of seventy-five thousand in- habitants, and less than two hundred thousand inhabitants, the judge of the probate court shall receive a salary of three thousand dollars per annum to be paid in monthly installments by a warrant drawn upon the county treasury. In such counties the probate clerk shall receive twelve hun- dred dollars per year to be paid in the same manner. All fees authorized by law are to be collected by the court and paid over at the end of each month to the county treasurer. Several circuit courts have held this statute to be uncon- stitutional.'"^ The cjuestion has not as yet been decided by the supreme court. With this exception probate judges are entitled to deduct as salary out of the fees received by their office an amount equal to the annual compensation of the judge of the circuit court having jurisdiction in the same county, and are permitted to deduct further out of such fees all reasonable and necessary expenses for clerk hire. § 126. Terms of Court. — Probate court should hold four terms annually, commencing on the second ^Monda}" of Feb- ruary, May, August and November, and may hold special and adjourned terms, and in counties where such courts are held in more than one place for the transaction of pro- bate business, the courts must be held at the times and places designated by law therefor. Said courts may alter the time lor holding their stated terms, giving notice thereof in such manner as to them shall seem expedient.®^ 88 Rev. St. 1009, § 40<;(1. 90 Laws 1011. pp. 180, 1S7. 80 Rev. St 1009, § 10t;95. oi Rev. St. 1000, § 40tJ0. 320 PROBATE COURTS, JURISDICTION, ETC. § 126 An order altering the time of holding the regular terms should be entered of record at a regular term of said court, and may be as follows: Now, on this day of the regular term of this court, commencing on the second Monday of , A. D., 19 — , it is or- dered by the court that the time for holding the regular stated terms of this court be and the same are hereby changed from the second Mondays of February, May, August and November, to the third Mondays of February and May, and to the first Mondays of August and November, so that hereafter the regular terms of this court will commence on the third Mondays in February and May, and on the first Mondays of August and November in each year ; and it is further ordered that notice of the change of time for holding this court be given by the publication of a copy of this order for four weeks successively in the , a newspaper printed and published in the city of in the county of and state of Missouri. In the absence of any showing on the subject it will be assumed that a special term of the probate court was prop- erly and lawfully held."^ By a special provision the terms of probate court in Jackson county, Missouri, commence on the second Monday of February, May, September and No- vember of each year, instead of the second Alonday in Feb- ruary, May, August and November.^^ § 127. Powers of Probate Court. — In the exercise of its jurisdiction the probate court is governed by the statutes in relation to administration, to guardians and curators of minors and persons of unsound mind, to apprentices, and such laws as may be enacted defining and limiting the prac- tice in said court.®* Such court has power to enforce obedi- ence to all orders, rules, judgments, and decrees thereof, and may issue attachment for contempt offered such court or its process by any person, and may fine and imprison all such offenders in the same manner as circuit courts may do in like cases. "^ The probate judge, in vacation, has such powers as are specially conferred upon him by law, A probate judge may be invested with and execute judicial powers other than those granted by the constitution to the probate court. But as we have said, neither the judge nor the probate court can exercise any functions or powers or perform any act, unless the same be authorized by law. He cannot grant a »2 state ex rel. Bell v. Nolan, 99 Mo. 569, 12 S. W. 1047. 93 Terras of probate court in Jackson county. 94 Rev. St. 1909, § 4067. 9 5 Rev. St. 1909, § 4068; State ex rel. Lionberger v. Tolle, 71 Mo. 645. § 129 PROBATE COURTS, JURISDICTION, ETC. 1-1 new trial, '•^ nor take the opinion of a jury upon any special fact."^ § 128. All Writs, Orders and Other Process of the pro- bate court must be issued and directed to the sheritt of the county where such process is to be served, and it may be executed by the sheriff or his deputy, and if the sheriff be interested or disqualified, it may be served by the coroner, or if the office be vacant, by a person specially deputized for the purpose.'"* § 129. Docket to be Kept. — The probate court or clerk must keep a docket, in which must be entered, at least thirty days before each term, the names of all executors and administrators and of all guardians and curators whose settlements are due at such term, and designate the particu- lar day on which each settlement is required to be made, and cause the same to be published for three weeks in some newspaper published in the county, if there be one, and the court must divide the cost of printing each docket, by the whole number of cases docketed, and tax against each es- tate the amount ascertained by such division as its costs in the case, and if there be no such paper published in the county, the clerk must post up a copy of such docket in some conspicuous place in his office, thirty days before said term. And on the day so appointed, the executor, admin- istrator, guardian or curator, must appear and make his settlement, unless for good cause shown the court shall continue the same to some other day or term.»^ The law as to administration of estates of deceased per- sons, and as to guardians and curators, requires the court to make out a docket, and as it is^ substantially alike in both cases, but one docket need be made and published.^**** It may be in the following form : Probate Court Docket of cases in which settlements are due, from executors and administrators, and guardians and curators, at the ensuing term of the probate court of county, to be held at the court house iu said county, commencing on the Monday of A. D., 19 — . (See Guardian.) 96 Morris v. Lane. 44 Mo. App. 1. »7 Bradley v. Woerner, 46 Mo. App. 371. 98 Rev. St. 1909. §§ 11212, 11217-11219. 9 Rev. St. 1909. § 224. i-^o Rev. St. 1909. § 447. 122 PROBATE COURTS, JURISDICTION, ETC. § 130 § 130. When Guilty of Misdemeanor — Penalty. — If the judge or clerk of probate shall knowingly and willfully do any act, prohibited by law, or omit or refuse to perform any act, service or duty required of him by law, he shall be deemed guilty of a misdemeanor in office, and on con- viction, be removed from office and be subject to suit for damages by any person who may be injured by such act.^°^ § 131. Fees. — The probate court is required by law to charge specific fees for the services it renders. The stat- ute provides for the following fees : For granting letters of administration or testamentary, record- ing the same, appointing witnesses, administering oaths, and everything relating thereto $1.00 For an order appointing guardian or curator 15 For talving and filing bond of executor, administr.itor or cura- tor, and recording same 75 For taking, filing and recording any bond not otherwise pro- vided for 75 For apportioning assets among creditors 50 For advertising each settlement of, etc., and docketing the same It^ For every order directing specific performance of any contract for the conveyance of real estate 1.50 For an order of sale of I'eal estate 75 For copy of every such order 40 For an order of publication 40 For copy of such order 35 For every order of sale of personal property 35 For every order relating to administrators, executors or guardians not other\^^se provided for 15 For copying any order, or record, or paper not herein provided for, per hundred words 10 For taking and filing heirs' refunding bond 35 For every verdict or .iudgment 25 For taking, filing and recording new bond of administrator, executor, guardian or curator 75 For recording every settlement or instrument of writing, not othermse provided for, per hundred words and figures 10 For issuing a citation to an administrator, executor, guardian or curator 35 For taking proof of any will or codicil 75 For every certificate and seal 50 For issuing every siibpoena 25 For administering every oath 05 For making abstract of demands, for every demand 05 For certifying with seal, the amount, date, and class of de- mand, when allowed 10 For drawing, taking and filing each indenture of apprentice- ship, when the court binds a minor, to be paid by the master 1.50 101 Rev. St. 1909, § 4064. § 131 PROBATE COURTS, JURISDICTION, ETC. 123 For swoarini; and eiitcrinj: a jury ? -^'-J For entorini.' a trial with or withuut a Jiuy 05 For a commission to take depositions 50 For an execution or otlier writ not otherwise provided for. ... 1.00 For talvinj? and entering a recognizance •'55 For an attachment 50 For eveiw continuance of a cause 10 For entering an appeal '^0 For taking and finding appeal bonds 30 For venire for jury when one is specially ordered and is ac- tually issued ''.j For each order distributing assets among heirs 35 For entering a settlement, ainiual or final 35 For filing every paper, not otherwise provided for 05 For e.xamining, and approving or re,1ecting. every settlement of administrators, executors or guardians 50 For hearing and determining every cau.se submitted to him for trial 50 For examining and approving or rejecting, every inventory, appraisement" sale bill or bond of any executor, administra- tor or guardian 50 For solemnizing a marriage 2.00 The jud.s^e or clerk is not authorized to afifix a certificate and seal to any document showing that the same has been recorded and make a charge therefor, unless such certificate is expressly required by law.^°- The probate judge is not entitled to fees for entering or- ders opening and adjourning court.^"^ Parties may by agreement of record make expenses taxable as costs, which would not otherwise be so taxable. ^°* 102 Rev. St. 1900, § 10G95; Gannnon v. Lafayette County, 70 Mo. 675. 103 Gammon v. Lafayette County, 76 Mo. 675; City of St. Louis v. RIeintz, 107 Mo. 611, IS S. W. 30: Houts v. McCluney. 102 Mo. 13. 14 S. W. 766 ; Hoover v. Missouri Pac. Ry. Co., 115 Mo. 77, 21 S. W. 1076. 104 Schawacker v. McLaughlin, 139 Mo. 333, 40 S. W. 938; Wat- kins V. McDonald, 70 Mo. App. 357; State ex rel. Ury v. Gans, 72 Mo. App. 638. 124 EXECUTORS AND ADMINISTRATORS § 132 CHAPTER XV OF THE APPOINTMENT OF EXECUTORS AND ADMINISTRA- TORS, THEIR BOND, REVOCATION OF LETTERS, ETC. § 132. Executor. 133. Executor de son tort. 134. General administrators. 135. Special administrators defined. 136. Executors and administrators, same duties. 137. Executors cannot act without letters. 138. What court may grant letters. 139. In what county letters must be granted. 140. To whom letters may not be granted. 141. To whom letters may be granted. 142. Same — Letters in case of general intestacy. 143. Same — To husband or wife. 144. Same — When wife has seitarate estate. 145. Same — To distributees or next of kin. 146. Citation to administer — Letters to another, 147. No letters to be granted, when, etc. . 148. Proceedings to obtain letters. 149. Same — By executor or administrator. 150. Bond of executors and administrators. 151. Same — Liability on, etc. 152. Execution of bond — New bond, etc. 153. Who shall not be taken as sureties. 154. Approval or rejection of bond, etc. 155. Bond excused by will — Joint bond, etc. 156. Bond to be recorded. 157. Validity and form of letters. 158. Same — To be approved and recorded. 159. Authority conferred by letters. 160. Revocation of letters. 161. Same — Statutory grounds therefor. 162. Additional bond and revocation of letters. 163. Effect of additional bond. 164. Notice — When administrator has left the state. 165. Resignation of executor or administrator. 166. Proceedings on revocation of letters, resignation or death of administrator, etc. 167. Same. 168. Same — Former administrator required to settle, etc. 169. Same — Notice and judgment. § 132. Executors. — An executor is a person to whom the execution of a last will or testament is by the testator's appointment confided.^ The appointment must be made by 1 2 Blackstone's Com. 503 ; 1 Williams, Ex'rs, 197. § 133 EXECUTOES AND ADMINISTRATORS 125 the terms of the will itself; so if tlicre be no will, there can be no executor. Although a testator usually nominates an executor, an omission to do so does not invalidate a will ; therefore, there may be a valid will which nominates no ex- ecutor. On the other hand, a will may be made for the single purpose of nominating an executor. The law requires no particular form of appointment of an executor in a will, and any language which either ex- pressly or by implication imposes the duties of administra- tion upon a given person, or clothes him with the authority to carry out the terms of the will, is sufficient. The general rule followed by the courts in the construction of other terms of a will applies to a provision appointing an executor — there must be apparent to the court a testamentary inten- tion that the person namicd shall take charge of the estate, perform the duties, and possess the powers usual to the of- fice of an executorship.^ § 133. Executor de son tort. — At common law any one who took upon himself the office of executor by intrusion, or intermeddled Avith the property of the deceased without authority made himself an executor de son tort, or "of his own wrong." ^ An executor de son tort, it was said, was subject to all the liabilities, but was entitled to none of the privileges that belong to an executor — yet he was protected in doing all acts not done for his own personal benefit which a rightful executor might do. The intermeddling necessary to render a person liable as an executor "of his own wrong" was such as manifested an attempt to exercise control over, or make dispositions of the effects of the deceased.'* Even at common law there were many acts which mig;ht be per- formed by a stranger without incurring liability as an ex- ecutor de son tort, such as gathering up and taking care of the goods of the deceased ; directing the funeral in a man- ner suitable to the condition and circumstances of the de- ceased, and defraying the expenses thereof out of his own, or the decedent's efifects ; feeding live stock belonging to the deceased; making indispensable repairs, or providing necessities for the family; for those are acts of kindness and charity. 2 In re Hill's Estate. 102 Mo. App. G17, 77 S. W. 110. SI Williams. Ex'rs, 225. 4 Manner v. R.van, 19 Mo. 196 ; Rougtell v. Strode, 12n Mo. App. 348, 103 S. W. 510. 126 EXECUTORS AND ADMINISTRATORS § 133 An executor de son tort with the common-law liabilities connected therewith is unknown in Missouri. The system provided by statute for the settlement of estates of deceased persons is intended to be exclusive of all other methods, and the laws applicable thereto are ample and sufficient to meet any emergency that may possibly arise. ^ The proper per- son to proceed against any one who intermeddles with the property or assets of the deceased is the rightful executor or administrator. A creditor cannot collect a debt due to him from the decedent by an action brought by him against one who has wrongfully assumed the duties of an executor. When a person takes out letters of administration, who has without right exercised the duties of executor or adminis- trator before his appointment, his authority is extended by relation back to the time of the death of the deceased, and except where the rights of innocent parties intervene, his acts are to be viewed in the same light as if he had been the rightful administrator." § 134. General Administrators. — If a person make no testamentary disposition of his property, he is said to die intestate, and there is, in such case, what is called a general intestacy. If there be a will, but no executor is appointed, or the appointment should wholly or partially fail, the tes- tator is said to die quasi intestatus. At common law there were different kinds of administrators, viz. : general, special, limited and temporary. These, under our law, may be di- vided into two kinds : general and special. A general ad- ministrator is one who is appointed by the proper court to administer, without restriction as to power or limitation as to time, until the final settlement of the estate. It is this kind of administration that is usually intended where the subject is mentioned in judicial proceedings or legislative enactments. An administrator cum testamento annexo, "with the will annexed," may be termed a general adminis- trator. The appointment occurs when there is no executor named in the will, or the executor named in it renounces the trust, or dies, or is otherwise disqualified. Such an admin- istrator becomes in effect an executor, and he is charged with the duty of carrying out all the terms of the will ex- c Rozelle V. Harmon, 103 Mo. 339, 15 S. W. 432, 12 L. R. A. 187. 6 Magner v. Ryan, 19 Mo. 196 ; Stagg v. Green, 47 :Mo. 500. § 135 EXECUTORS AND ADMINISTBATOBS 127 cept those which commit discretionary powers to the exec- utor.^ § 135. Special Administrators. — Special administrators arc of dilTcrent kinds, and are classihed with reference to the circunii^tanccs which demand their appointment. 1. ^In adiniitistrator dc bonis noii (of goods unachninis- tered) is one who is appointed to complete the administration of a former administrator who has from any cause failed to fully administer. So far as'the estate is committed to him, an administrator de bonis non has all the power of a general ad- ministrator. *" He stands in the attitude of his predecessor, and it is his duty to sue for and recover the unadministered assets when necessary. 2. An administrator de bonis nan cnni tcstaincnfo annc.vo is one who is appointed to complete the execution of a will or administration of an estate which remains unexecuted or unad- ministered by reason of the death, removal, or incapacity of the executor named in the will. His powers are coextensive with the assets unadministered. Such an administrator may be appointed to protect the rights of heirs and distributees, though there be no debts, ° but not for the sole purpose of making a deed.^^ 3. An administrator durante minore estate (acting during minority) is one appointed where the executor named in the will is an infant, to take charge of the property and adminis- ter the same according to law, under the direction of the court, until such infant executor attains his majority and is qualified to act.^^ 4. An administrator pendente lite (pending litigation) is one appointed when tbe validity of a will is contested, to take charge of the estate and administer it according to law, under the direction of the court, until the contest is determined.^ - ~ Borland on Wills, § SO; Conipton v. ?iIcMahan, 19 Mo. App. 494; Francisco v. Winsfield, IGl Mo. 542. Gl S. W. 842. *^ Kev. St. 1909. § ,54 ; State, to Use of Blanton's .\dni'r, v. Hunter. 15 Mo. 491; State ex rel. Collins v. Diille, 45 Mo. 2G9 ; Landruni V. Bank. 6-3 Mo. 4S ; State ex rel. Pountain v. Gray, 100 Mo. .".2G. 17 S. W. 500; Enuiions v. Gordon. 125 Mo. 636, 2S S. W. SG.3 ; In re Estate of Glover. 127 Mo. 153, 29 S. W. 982. 9 Scott V. Crews, 72 Mo. 261; State ex rel. Crane v. Ili'inricbs, 82 JIo. 542. lOLons V. Joplin Mining & Sinolting Co.. G8 Mo. 422; Grayson v. Weddle. 63 Mo. 523 ; Carey v. West, 139 Mo. 146, 40 S. W. 661. 11 Kev. St. 1909. § 21. 12 Rogers v. Dively, 51 Mo. 193; Lamb v. Helm, 56 Mo. 420; State 128 EXECUTORS AND ADMINISTRATORS § 135 If the case contesting the will be appealed to the supreme court, the letters of the administrator pendente lite can not be revoked until the case is finally determined/^ An adminis- trator pendente lite has no greater powers than a regular ad- ministrator, and no more comprehensive title, ^* nor has he more authority to take possession of the real estate and col- lect rents unless by order of the probate court. Such an ad- ministrator does not take the character of a receiver.^ ^ 5. An administrator durante absentia is one appointed to take charge of the estate and administer it during the absence from the state of the executor named in the will. The last three of these special administrators are of a temporary nature. They are a species of administration cum testamento annexo. As soon as the rightful execu- tor qualifies and takes upon himself the duties and responsi- bilities of the trust, the authority of the special administrator ceases, and he must account for and pay over and deliver all the money and property of the estate to the executor or gen- eral administrator.^'' Where a special administrator is suc- ceeded by the executor or regular administrator, there is in effect but one representation of the original testator. § 136. Executor and Administrator are not in a legal sense synonymous terms. Barring special testamentary powers given toi an executor, the duties, rights and lia- bility of each in relation to the estate in charge from the receipt of letters to the final settlement are so essentially the same that for utility and convenience we may treat them both under the same general headings, pointing out the difference as we proceed. § 137. Executor Cannot Act Without Letters. — Former- ly an executor might perform many acts in relation to the estate, before the receipt of letters, because, he derived his interest in, and power over the property of the deceased from the will, and the title to it vested in him from the mo- ex rel. Cameron v. Shannon, 133 Mo. 139, 33 S. W. 1137; In re Es- tate of Soulard, 141 :Mo. 042, 43 S. W. 617. 13 State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S. W. 281, 50 I>. R. A. 787. 14 Union Trust Co. v. Soderer, 171 Mo. 675, 72 S. W. 499. 15 Union Trust Co. v. Soderer, 171 Mo. 675, 72 S. W. 499. 16 Ro Bards v. Lamb, 89 Mo. 303, 1 S. W. 222; Emmons v. Gordon, 125 Mo. 636, 28 S. W. 863; Ully v. Meuke, 126 Mo. 190, 28 S, W. 643. 994. § 1:39 EXECUTORS AND ADMINISTRATORS 129 mcnt of the testator's death. -^^ But as a general rule, a par- ty entitled to administer, could do nothing as administrator before letters were granted lo him, because he derived his authority, not like an executor from the will, but entirely from the apj^ointment of the court ; and an administrator with the will annexed, had no greater right, in this respect, than any other administrator. But now the general rule is, that an executor must prove the will and take out letters before he acquires any rights or incurs any liabilities in re- gard to the property of the deceased, or before he can bring suit as such executor. ^^ The doctrine of the common law which regarded the ])ersonal representative as the absolute owner of the personalty belonging to the deceased, does not prevail here, and his power to dispose of the assets is limit- ed and regulated by law.^" But the principles of the com- mon law may be looked to in explanation of our statutes.^" The estate vests in the executor for purj^oses of administra- tion, and he must take out letters before he is fully author- ized to act."^ § 138. What Court May Grant Letters. — The probate court, or the judge or clerk thereof in vacation, subject to the confirmation or rejection of the court has power to grant letters testamentary and of administration.-- When letters have been granted by the clerk in vacation he must present them to the court at the next succeeding term there- of, and enter in the record the confirmation or rejection of the same.-^ The appointment made in vacation, however, is not subject to collateral attack, and the letters issued are valid until rejected by the court.-* § 139. In What County Letters Must be Granted. — Let- ters testamentary and of administration, must be granted: I. In the county in which the mansion house or place of 17 1 Williams, Ex'rs, 255. 18 Sttiffg V. Green. 47 Mo. 500; Coleman v. Farrar, 112 Mo. 54. 20 S. W. 441; Venable v. Wabash West. Ry. Co., 112 Mo. 103. 20 S. W. 403, 18 L. R. A. 68; Bamhrick v. Webster Groves Presby- terian Church Ass'n. 5.3 Mo. App. 2.-,:'. : Rev. St. 1909, § 9. 19 Stafig V. Linnenfelser, 59 Mo. 33G. 2 Tittorin.iiton v. Hooker, 5S Mo. 593. 21 I^mb V. Helm. 56 ?»Io. 420. 22 Rev. St. 1909, § 9; Macey v. Stark, 116 Mo. 481, 21 S. W. 10S8. 2 3 Rev. St. 1909, § 11 : Macey v. Stark, 116 Mo. 481. 21 S. W. 1088. 24 Macey v. Stark, 116 Mo. 481. 21 S. W. 108S : Brawford v. Wolfe, 103 Mo. 391, 15 S. W. 426; Griesel v. Jones, 123 Mo. App. 45. 99 S. W. 769. . Kel.Mo.P.G.— 9 130 EXECUTORS AND ADMINISTRATORS § 140 abode of the deceased is situated. 2. If he had no mansion house or place of abode at the time of his death, and pos- sessed lands, letters must be granted in the county in which the land, or the greater part thereof, lies. 3. If he had no mansion house or place of abode and possessed no lands, letters may be granted in the county in which he died or where the greater part of his estate may be. 4. If he died out of the state, leaving no mansion house, place of abode, or lands in this state, letters may be granted in any coun- ty.^^ If letters be granted in the wrong county, the admin- istration proceedings cannot be attacked collaterally on that ground. -'^ All orders, settlements, trials and other proceed- ings in relation to the settlement of decedents' estates must be had or made in the county in which the letters were granted.^'' § 140. To Whom Letters May Not be Granted. — The general rule is that all persons are capable of being execu- tors, except such as are expressly excluded by statute. It is provided by statute that no judge, justice or clerk of any court having probate jurisdiction in his own county, or his deputy, and no male person under twenty-one years of age, or female under eighteen, or person of unsound mind, shall be executor or administrator. No married woman shall be executrix or administratrix; nor shall the executor of an ex- ecutor, in consequence thereof, be executor of the first tes- tator.-^ Letters cannot, in any case, be granted to a non- resident of the state ; and should an executor or administra- tor become a non-resident the proper court will, on due notice to him, revoke his letters.-^ And the marriage of an executrix or administratrix extinguishes her power as such and her letters will be revoked. ^^ § 14L To Whom Letters May be Granted. — After the probate of the will letters testamentary must be granted to the persons therein appointed executors. If a part of the 2 5 Rev. St. 1909. § 12. 2e .Tohnson v. Boazley, 65 Mo. 2.50, 27 Am. Rep. 276; Riley's Adurr V. McCord's Adni'r, 24 Mo. 205; In re Estate of Davison, 100 Mo. App. 263, 73 S. W. 373. 27 Rev. St. 1909, § 13; Realey v. Smitli, 158 Mo. 515, 59 S. W. 984, 81 Am. St. Rep. 317. 2 8 Rev. St. 1909. § 14; Becraft v. Lewis. 41 Mo. App. 540. 2 Rev. St. 1909, § 18; Stevens v. Larwill, 110 Mo. App. 140, 84 S. W. 113. 30 Rev. St. 1909, § 49. § 142 EXECUTORS AND ADMINISTRATORS 131 persons thus ai)i)ointo(l refuse to act, or be disqualificrl, let- ters must be granted to the others, and if they all refuse to act, or be disqualified, letters of administration with the will annexed must be granted to the person to whom ad- ministration would have been granted if there had been no will.''^ A subscril)ing witness to the will may be appointed executor, if he has no devise, legacy or gift in the e-tate or will.^- § 142. Same — In the Case of a General Intestacy, letters of administration are to be granted in the following order: 1st. On the death of the wife, to the husband, and on the death of the husband to the wife. The husband or wife has the superior right to administer. 2d. Next to the husband or wife, those entitled to the distribution of the estate, or one or more of them, as the court, or clerk in vacation, shall believe will best manage and preserve the estate."^ Those entitled to distribution, and consequently to administer, are in the following order: 1st. The children of the deceased, or their descendants. 2d. The father, mother, brothers and sisters, and their descendants. 3d. The husband or wife. 4th. The grandfather, grandmother, uncles and aunts and their descendants. 5th. The great-grandfathers, great- grandmothers and tlieir descendants, and so on in other cas- es without end, passing to the nearest lineal ancestors and their children and their descendants.^* The order of precedence prescribed in the statute, howev- er, is not so rigid as to preclude the probate court from passing over a person entitled to letters, where the one pass- ed over is unfit to administer the estate. ^'^ The order of the probate court refusing to grant letters is not appealal:)le, but the remedy is by mandamus to compel the court to issue letters of administration."'' Even the remedy by mandamus. 31 Rev. St. 1900. §§ 10. 570; Miltenberfier v. Miltenberger. 78 Mo. 27; Grimm v. Tittnuui. 113 Mo. 56, 20 S. W. «;(;4. 32 Rev. St. 1000, § 570; Ilogan v. Iliiichey, 105 Mo. 527. 04 S. W. 522. 33 Rev. St. 1000, § 15; State ex rel. (irover v. Fowler. lOS Mo. 465, IS S. W. 068; Stevens v. Lurwill, 110 Mo. App. 140, 84 S. W. 113. 3 4 Rev. St. 1000, § 332. 35 State ex rel. Flick v. Reddish. 147. 25 S. W. 565; Soimuer v. Franklin Bank. lOS Mo. App. 490, S3 S. W. 1025; Miller v. Hoover. 121 Mo. App. 568, 97 S. W. 210. 120 Tittman v. Thornton. 107 Mo. 500, 17 S. W. 979. 16 L. R. A. 410; Miller v. Hoover. 121 Mo. App. 5(;s. 97 S. W. 210. 121 Crohn v. Clay County State Hank. 137 Mo. App. 712. US S. W. 498. 122 Crockett v. Althouse, 35 Mo. App. 404; I'otter v. Bassett, 35 Mo. App. 417. i23Eimmous v. Gordon, 140 Mo. 490, 41 S. W. 998, 62 Am. St. Rep. 734. 124 Hughes V. Burriss. 85 Mo. 660; Benoist v. M\n-iin, 48 Mo. 48. 125 Rev. St. 1909, § 48. 152 EXECUTORS AND ADMINISTRATORS § 160 revoked and letters testamentary or of administration with the will annexed will be granted.'-^ But all acts done by the administrator in the due course of administration previous to the revocation of his letters are valid and binding on all in- terested in the estate.^-' The marriage of an executrix or ad- ministratrix extinguishes her power as such, and her letters will be revoked.^-** No order of court is necessary in such case.^-^ A non-resident should not be appointed, and if an executor or administrator becomes a non-resident of the state, his letters will be revoked. But non-residence will not of it- self work a revocation of letters; an order or judgment of the court is necessary to produce that result.^ ^° The revocation of letters was supposed before the statute of 21 Henry VIII, to rest in the pleasure of the ordinary. Since that statute, such letters have not been revoked in England but for some just cause.^^^ Chancellor Kent says that if let- ters have been unduly granted they may be revoked.^^^ No doubt, if letters should be granted inadvertently to a person excluded from administering by the statute, such letters may be recalled or revoked. And if it should appear that a pend- ing administration is without authority of law, it would be the duty of the court to revoke the letters and stay further pro- ceedings.^'" § 161. Same — Statutory Grounds Therefor. — The grounds for revoking letters testamentary and letters of ad- ministration for cause are the same, and the subject is very fully anticipated by the statute. It is provided that if any ex- ecutor or administrator become of unsound mind, or be con- victed of any felony, or other infamous crime, or has absented himself from the state for the space of four m.onths, or be- come an habitual drunkard, or otherwise incapable or unsuit- able to execute the trust reposed in him, or fail to discharge his official duties, or waste or mismanage the estate, or act so as to endanger any co-executor or co-administrator, the court, upon complaint in writing made by any person interested, sup- 126 Rev. St. 1009, § 47. 127 Tapley v. McPike, 50 Mo. o'^O. 128 Rev. St. 1909. § 49: Frje v. Kimhall. IG Mo. 9. i29Carr v. Spannasel, 4 Mo. .\pp. 2S4. 130 State ex rel. Rucker v. Ilucker, 59 Mo. 17. 131 1 Williams, Ex'rs, 508. 132 2 Kent's Com. 413. 133 McCabe v. Lewis, 76 Mo. 296; Skelly v. Veerkamp, 30 Mo. App. 49. § 161 EXECUTORS AND ADMINISTRAT0E8 153 ported by affidavit, and ten days' notice given to the person complained of, will hear the complaint, and if it finds it just, will revoke the letters granted/''* Appeal lies from the order of the probate court revoking the letters of administration. ^^"^ If, upon a survey of the whole administration, it appears that the administrator is wast- ing the estate, or abusing his trust to the prejudice of those interested in the estate, he should be removed.^ ^'^ If the money or property of the deceased was converted by another in his life time, and the executor, having knowledge of the facts, re- fuses to take proper steps to recover it, he is guilty of mis- management and should be removed.^" f i-,g complaint should be specific in its allegations of misconduct on the part of the administrator or it will be open to a motion to make more definite and certain. ^^^^ Ten days notice shall be given to the executor or administrator affected before the complaint shall be heard by the court. This notice may be served by sherifiF, constable or competent watness and shall set forth the sub- stance of complaint. The return of service shall be verified by affidavit.139 Form of Complaint for Revocation of Letters State of Missouri, |gg County of • \ ' ^ ,. In the Matter of the Estate of \ In the Probate Court of the County A. B., Deceased. J of , Term, 19—. And now on this day comes J. B., of said county, and respectfully represents to the court that he is an heir at law (or set forth the interest of the complainant in the estate) of A. B., late of said coun- ty, deceased, and as such is interested in the safe and proper ad- ministration of the estate of the deceased, and entitled to distribu- tion therein ; that C. D., executor (or administrator) of said estate, has become an habitual drunkard (or insert the particular facts of the case upon which revocation is sought), and incapable, and un- suitable to execute the trust reposed in him. Complainant also states that he has given said C. D., executor (or administrator), ten 134 Rev St. 1909, § 50; Meriwether v. Block, 31 Mo. App. 170; Stevens v. Larwill, 110 Mo. App. 140, 84 S. W. 113; Ow(>ns v. Link, 48 Mo. App. 5.34. _^ 135 Rev. St. 1909, § 289; Mullanphy v. St Louis County ( ..urt. b Mo. 568; Cuendet v. Henderson. 106 Mo. 657. 66 S. W. 1079. 136 Owens V. Link. 48 Mo. App. 534; Padgett v. Smith, 114 Mo. App. 307. 89 S. W. 886. 137 iiaynes v. Carpenter, 86 Mo. App. 30. i38T>>wellyn v. Lewellyn. 87 Mo. App. 9. 18 8 Rev. St. 1909. §§ 50, 280. 154 EXECUTORS AND ADMINISTRATORS § 161 days notice in writing of this application as is evidenced by said notice together with the proof of service thereof, herewith filed and made iiart liereof. Wherefore, the complainant prays that the letters testamentary (or of administration) lieretofore granted to tlie said C. D. upon said estate be revoked, and letters be granted to some suitable person entitled to same. J. B. J. B., being first duly sworn, upon his oatli, says that he lias read the foregoing complaint, and that the matters and things therein stated are true. J. B. Sworn to, and subscribed before me this day of , 19 — . J. R. (style of oflice.) Notice of Application for Revocation of Letters To C. D., Executor [or Administrator] of tlie Estate of A. B., De- ceased: You are hereby notified that on the — day of , 19 — , being the day of the term of the probate court of the county of , to be held at the of in said county, or as soon thereafter as I can be lieard, I shall apply to said court for an order revoking your letters as executor [or administrator] of said estate, for the reasons following, to wit: [Here insert the grounds upon whicli the application is based.] J. B. Dated at this day of , 19—. § 162. Additional Bond and Revocation of Letters. — Any heir, legatee, creditor or other [person interested in any estate, may file in the i:)robate court an affidavit, stating- that he has sufficient cause to believe, and does believe, that the security in the executor's or administrator's bond has, or is likely to become insolvent, or has died, or has removed from the state, or that the principal in said bond has, or is likely to become insolvent, or is wasting the estate, or that the penalty of the bond is insufficient, or that such bond has not been tak- en according to law, and give at least ten days' notice of the complaint to the principal in the bond, and the court will ex- amine into the complaint. And any security in such a bond may file his affidavit, stating that he has sufficient cause to believe, and does believe, that his co-security has died, or is likely to become insolvent, or has removed from the state, or that the principal in such bond has, or is likely to become insolvent, or is wasting the estate, and give the principal in the bond at least ten days' notice, and the court will examine into the complaint.^ ■*" 140 Rev. St. 1909, §§ 34-3G. § 162 EXECUTORS AND ADMINISTRATORS 155 Form of Affidavit for Additional Bond State of Missouri, County. In tlio Court of County, Term. 10 — . I'er.son;illy appeared before me tlie undersijined. , within and for .said county, J. D., of said county, wlio ijeing first duly sworn, upon oatli states tliat lie is an lieir at law (or as the case may be) of K. K., late of said county, deceased, and as such, is interested in said deceased's estate, and entitled to distribution therein; that he has .sutlicient cause to believe, and does believe, that E. F., the security in the bond of A. I{., administrator of the estate of said R. R., deceased, has become insolvent, (or has died, or has removed from the state, or state the particular facts constitutiiif^ the j^round of complaint). He therefore asks the court to examine into the complaint of this aftiant. and if the same be found to be just, that another bond and sutlicient security be required to be j^iven. J D . Sworu to and subscribed before me, this day of , 19 — . J R , (Style of oflice.) Form of Notice to Principal of Complaint for Additional Bond, Fjc. To A. B., Executor of the Estate of R. R.. deceased: You are hereby notified that I, J. D.. an heir at law of R. R.. deceased, have filed in the court of the county of and state of Missouri, an affidavit, stating that I have sutficieut cause to believe, and do believe, that E. F.. the security in the bond of A. B., executor of the estate of the .said R. R., deceased, has become insolvent, (or state the facts as set out in the affidavit), and asking that another bond and sufficient security be required to be given; and that said conii)Iaint will be exanuned into by the said court on tlie first day of the next term thereof, to be held at on the day of , 11) — . Of which you will take notice. July — , 1!)—. J. D. This form may be modified so as to answer for a notice in the case of a complaint for the revocation of letters. The notice should be in writing-, and must be served at least ten days before the day on which the complaint is set down for hearing. The service should be by copy, and may be made by anv officer authorized to execute process, or by any person who may be a competent witness. If the service is by an officer, his return is sufficient evidence of the fact ; but it is by any other person, his affidavit as to the fact of service is required.*''^ m Rev. St. I'.H)!). § 2S0. 156 EXECUTORS AND ADMINISTRATORS § 1G3 § 163. Effect of Additional Bond. — At the time ap- pointed, if it be shown that the executor or administrator has been duly notified of the complaint, the court will proceed to examine into it, and if it shall find the complaint to be just and true, it will order another bond, with sufficient security, to be given. The effect of the additional bond when given and approved, is to discharge the former securities from liability arising from any misconduct of the principal after the new bond is filed, and the former securities are only liable for such misconduct as happened prior to the giving of the new bond.^*^ But unless the new bond is given on complaint made in con- formity to the statute, and is based on the existence of some statutory cause requiring it, the sureties on the old bond are not released, but stand jointly liable with the new bondsmen, or as additional securities."^ If the bond be executed on the basis of the statute, the new bondsmen are only liable for mis- conduct or defaults committed after the new bond was giv- en."* But if the administrator pledge the notes or effects of the estate for his own purposes, he is guilty of a devastavit, but he may retake such effects from one, having notice of the facts ; and' if he neglects to do so, after a new bond has been given, it is a continuing devastavit, for which the sureties on the new bond are also liable."' If the party fail to give ad- ditional bond and security within five days after the order requiring it is made, the court must revoke his letters, and his authority from that time will cease."" It is the duty of the court to examine the bonds of executors' and administra- tors annually, and upon its own motion to order an executor or administrator to give other and further security whenever it shall appear necessary and proper that he should do so, first giving him at least ten days' notice of the intended order ; and if he shall fail to give further security within ten days after making the order, the court should revoke his letters, and his 142 Rev. St. 1900, § .37. 143 Wood V. ^Yi]liams, 61 Mo. 63. 144 State ex rel. .Jacobs v. Elliott. 1.57 Mo. 609, .57 S. W. 1087, 80 Am. St. Rep. 64.3 ; Wolff v. Srliaeffer, 4 Mo. App. 307 ; State, to Use of Glenn, v. Fields, .53 Mo. 474 : State ex rel. Bell v. Nolan. 99 Mo. .569, 12 S. W. 1047 ; State, to Use of Hockaday. v. Woods, 84 Mo. 163. Rut see State ex rel. Hyslop v. Bilby, 50 Mo. App. 162; Lincoln Trust Co. V. Wolff, 91 Mo. App. 133; State, to Use of Drury, v. Drury, 36 Mo. 281. 14 5 State, to Use of Wolff, v. Berning, 74 Mo. 87. 14C Rev. St. 1909, § 38; State, to Use of Glenn, v. Fields, 53 Mo. 474 ; King v. King, 73 Mo. App. 78. § 163 EXECUTORS AND ADMINISTRATOES 157 autliority fn^ii that time will cease.^*^ The bond given under this statute dues not supersede the former one, but is cumu- lative and additional to it, and the former sureties are still liable.^*^ Form of Citation to Executor or Administrator to Shozv Cause Why His Letters Should Not be Revoked, or Give Additional Bond or further Security State of Missouri, | County. I Tlie State of Missouri, to A. B., executor of the last will of R. R.. deceased, greeting: Your are hereby cited personally to be and appear Ix-fore the pro- bate court of the county of , at the court house in the city of , the county seat of said county, on the day of , 19_^ the same being the day of the term of said court, to show cause, if any you can, why [the letters testamentary on the last will of R. R., deceased, heretofore granted to you should not be revoked] (or omit what is in brackets and add the matter required of him, as) you should not be required to give other and further security (or additional bond,) on your bond as executor of the last will of R. R.. deceased, and to further do and receive what shall be ordered by the court in the premises. In witness whereof, I have subscribed my name and affixed here- unto the seal of said court, at , this day of , 1&— . P. MERCER, [P^, S.] (Style of office.) Form of Order in Case of Complaint for Revocation, Etc. J. D. vs. A. B., executor of the last will of R. R., deceased. ^ Now, at this time come the parties, and the court, having heard the evidence and examined into the complaint of said -J. D. in his be- half made against the said A. B., executor of the last will of R. R., deceased, doth find that the said A. B. is an habitual drunkard, in- capable and unsuitable to execute the trust repo.sed in him; it Is therefore ordered and adjudged by the court that the letters testa- mentary heretofore issued to the said A. B. on the last will of R. R., deceased, be and the same are hereby revoked and superseded. If the finding is for the defendant change the order accord- ingly. This form can be easily adapted to any case of com- plaint for revocation of letters. 147 Rev. St. 1909, § 39; ante, § 152. 14 8 State, to L'se of Glenn, v. Fields, 53 Mo. 47-4; Haskell v. Far- rar, 56 Mo. 497 ; Wood v. Williams, 61 Mo. 63 ; Wolff v. Schaefifer, 4 Mo. App. 367. 158 EXECUTORS AND ADMINISTRATORS § 163 Form of Order on Complaint for Additioiml Bond J. D. vs. A. B., administrator of the estate of R. R., deceased.^ Now comes tlie complainant, J. D., and sliows to tlie court by a no- tice (or citation) issued and directed to tlie defendant, and an affi- davit of the due service thereof on said defendant, that he has given said defendant more than ten days' notice of the tiling of the complaint in his behalf, and that the same would be heard by the court at this time; and no one appearing to oppose the complaint, and the court having heard the evidence and examined into the com- plaint (or say now come the parties and the court having heard the evidence and examined into the complaint), doth find it to be just and true, that E. F., the security in the bond of A. B., as adminis- trator of the estate of R. R., has become insolvent, and the security in said bond is insufficient, it is therefore ordered that said A. B. shall give another bond, with sufficient securities as administrator of said estate, within ten days hereof, and iu default thereof, his letters will be revoked. This form mav be adapted to any cause of complaint for additional bond or for further security. If the finding be for the defendant, change the order accordingly. § 164. Notice — How Given When Administrator Has Left the State.— When it is necessary to cite an executor or administrator to give other and further security, or for any cause to answer why his letters should not be revoked and the court is satisfied from the evidence of competent witnesses that the executor or administrator has left the state with the intent to change his domicile, it will be sufficient to put up a notice on the front door of the court house and mail to the last known postoffice address of said party a copy of said notice by registered letter, thirty days before the term at which said hearing is to be had.^*® § 165. Resignation of Executor or Administrator. — It is provided by statute that, if any executor or administrator shall publish, for four weeks, in some newspaper published in the county where the proceedings are had, if there be one, and if not, in the nearest newspaper to such county, a notice of his intention to apply to the proper court to resign his let- ters, and the court, on proof of such publication, and for good cause shown, shall believe that he should be permitted to re- sign, it shall so order. The notice must be published four 14 9 Rev. St. 1909, § 40. § 165 EXECUTOES AND ADMINISTRATORS 159 weeks, there being twenty-eiglit days at least between the first insertion and the time at which he intends to apply to the court to resign. ^^" The party must then surrender his letters, his power from that time ceases, and he must pay the expenses of publication and all the proceedings on the application, and the same shall not be taxed against the estate. ^-"'^ The law in- dulges the presumption, in the absence of a contrary showing, that the court's orders and judgments are regular and founded on sufficient notice.^ ^^ Form of Notice of Resignation State of Missouri, ) To the terin of the Trobate Court, County. \ A. D.. 10—. In the matter of the estate of ).., .. * t> • *-• ., ^ ■ ^ , , f ^otlce of Resignation. R. R., deceased. j To all Persons Concei'ned: Take notice, that the uudersis^ned, administrator of the estate of R. R., late of said county, deceased, will at the term of said court to be held at the court house in the town of , the county seat of said county, on the day of , 19 — , apply to said court for leave to resign the office and trust of administrator of said estate. A. B., Administrator of R. R., Deceased. Dated , 19—. A copy of the advertisement, with the affidavit of the pub- lisher of the paper, should be attached to, or presented with, the resignation. The resignation must be in writing. The following form may be used : Form of Resignation State of Missouri, 1 In the Court of County, County. I term. A. D. 19—. In the matter of the estate of"| _, . -^ --, , , ^Resignation. R. R., deceased. | To the Court of County: I, the undersigned, administrator of the estate of R. R., deceased, having given the notice thereof required by law, as will appear by the proof of the same herewith tiled, do hereby resign my office as administrator of the estate of the said R. R., deceased, and ask that isoRatliff V. Magee, 1G5 Mo. 401, (i.j S. W. 713. 151 Rev. St. 1909, §§ 51, G7 : State ex rel. Koch v. Roeper, Mo. App. 21 ; State, to I'se of Wagenniann, v. Rosswaag, 3 INIo. App. 11. 152 State ex rel. Fountain v. Gray, 100 Mo. 52(5. 17 S. W. 500; Macey v. Stark, 116 Mo. 481, 21 S. W. 1088; Rogers v. Johnson, 125 Mo. 202, 28 S. W. 035; Young v. Downey, 145 Mo. 250, 40 S. W. 1086, 08 Am. St. Rep. 568. 160 EXECUTORS AND ADMINISTRATORS § 165 my resignation be accepted, and that I be discliarged from the fur- ther exercise of said oflice. A. B., Administrator of R. R., Deceased. The acceptance of the resignation must be entered of record. Form of Order Accepting Resignation In the matter of the estate of R. R., deceased. Resignation of Administrator. Now comes A. B., administrator of R. R., deceased, and presents to the court his resignation as administrator of said estate; and it appearing to the court that due notice of his intention to apply to the court at this time to resign his office as such administrator, has been given by publication of such notice for four weeks in the , a newspaper published in the town , county of — , and the said A. B., having adjusted with the court an account of his admin- istration of said estate, and paid over all moneys, effects and choses of action, etc., according to law ; and the court being sufficiently ad- vised in the premises, believes that said administrator has shown good cause and should be permitted to resign ; it is therefore ordered and adjudged that the resignation of the said A. B., as administra- tor of R. R., deceased, be accepted, and that he be discharged from further duties of .said office. § 166. Proceedings on Revocation of Letters, Resigna- tion or Death of Executor. — Where there are more execu- tors or administrators than one, and the letters of part of them be revoked, or surrendered, or a part die, the remaining executor or administrator will administer the estate and dis- charge all duties required by law respecting it. But if all the executors or administrators of an estate die, or resign, or their letters be revoked, or, after final settlement of an estate is had, and the executor or administrator has been discharged, un- administered assets of the estate be discovered after such final discharge, and there are unpaid allowed demands against said estate, or in cases not otherwise provided for, letters of administration of the goods remaining unadministered will be granted to those who would have been entitled to admin- ister if the original letters had not been granted, or the per- sons obtaining them had renounced their right thereto, and the administrator thus appointed will perform the like duties and incur the like liabilities of the former executors or ad- ministrators.^^^ The administrator so appointed stands in the attitude of his predecessor, and may sue for the unadminis- 153 Rev. St. 1909, §§ 5.3, 54; Derge v. Hill, 10.3 Mo. App. 281, 77 S. W. 105; Pullis v. Pullis, 127 Mo. App. 294, 105 S. W. 275. § 167 EXECUTORS AND ADM1NISTEATOB8 161 tered assets.^'^' On the death, revocation of the letters, or resignation of an administrator, or executor, he, or his legal representatives, must account for, pay and deliver to his suc- cessor, or the surviving or remaining executor or administra- tor, all money, real and personal property of every kmd, and all rights, credits, deeds, evidences of debt, and such papers of every kind of the deceased, at such times and in such man- ner as the court shall order, on final settlement with such ad- ministrator or executor, or his legal representatives, to be made on motion of his successor or remaining or surviving executor or administrator.^" The succeeding administrator, or remaining executor or administrator, may proceed at law against the delinquent and his securities, or either of them, or against any other person having any part of the estate. But suits against securities, in such case, must be commenced with- in seven years after the revocation or surrender of the letters or the death of the principal. ^^^ This section of the statute applies only to suits on prior administrator's or executor's bond brought by successor, or administrator '"de bonis non." Other actions on bond may be commenced within ten years.^" § 167. Same. — The administrator de bonis non is enti- tled to the possession of all property belonging to the estate which was in the possession of the former administrator, and so long as it can be identified as part of such estate, he may recover it, but if the property cannot be identified, he must, for the deficiency, fall into the proper class of creditors of the deceased administrator,^^^ or pursue his remedy against the sureties, in his bond. The principle of the common law, which entitled an administrator de bonis non to those goods only which remain in specie and not administered by the first administrator, is not applicable to our system of administra- 154 state ex rel. Fountain v. Gray, 106 Mo. 526, 17 S. W. 500; Cowgill V. Linnvlllo. 20 Mo. App. 138 ; State, to Use of Coste. v. Ful- ton, 35 Mo. 323; Emmons v. Gordon, 125 Mo. 630, 2S S. W. S63 ; In re Estate of Glover. 127 Mo. 153, 29 S. W. 982 ; State ex rel. Kar- renbrock v. Mississippi Valley Trust Co.. 209 Mo. 172, 108 S. W. 97. 155 Rev. St. 1909. § 55; In re Estate of Glover. 127 Mo. 153. 29 S. W. 982 ; State ex rel. Fountain v. Gray, 106 Mo. 526, 17 S. W. 500. 150 Rev. St. 1909. §§ 62, aS; State ex rel. Langston v. Zorn, 138 Mo. App. 713, 119 S. W. 517. 157 Nelson v. Barnett, 123 Mo. 564, 27 S. W. 520; State ex rel. Enterprise Mill. Co. v. Brown, 208 Mo. 613, 106 S. W. 6.30. 158 Gamble v. Hamilton, 7 Mo. 409; Morehouse v. Ware. 78 Mo. 100; I^riniore v. Bobb. 114 Mo. 446, 21 S. W. 922; Booker v. Arm- Kel.Mo.F.G.— 11 1G2 EXECUTORS AND ADMINISTRATORS § 168 tion.^^® It is the right and duty of such an administrator to close up and finally settle the whole of the remainder of the estate, precisely as if he had had it in charge from the first, and he may sue upon the bond of the former administrator for any devastavit or failure to account.^ '^** § 168. Same — Former Administrator Required to Settle, Etc. — The statute provides that if any executor or adminis- trator resign, or his letters be revoked, it shall be the duty of his successor or of the remaining executor or administrator to move the court to compel him to make final settlement ; and on such motion, after due notice to him, the court must ascer- tain the amount of money, the quantity and kind of real and personal property, and all the rights, deeds, evidences of debt and papers of every kind, of the testator or intestate, in the hands of such executor or administrator, or that came into his hands and remain unaccounted for at the time of his resigna- tion or removal from office, or revocation of his letters (and to order and adjudge the rendition of the same to the succes- sor of such executor or administrator), and to enforce such order and judgment against such executor or administrator and his sureties, if they had due notice of the proceeding, or against either of them ; first, for the amount of money speci- fied in the judgment, by execution in the ordinary form; sec- ond, for all other estate, effects and paper described in the judgment or order, by attachment against the person or prop- erty of such executor or administrator.^'^^ If any executor or administrator die, the court may, upon like application, ascer- tain the amount of money in the hands of the deceased exe- cutor or administrator, or that came into his hands and re- mained unaccounted for, in his representative capacity, at the time of his death, and render judgment against his secur- ities for the amount so ascertained, and enforce the same by execution in the ordinary form.^^^ And the court may also strong, 93 Mo. 40, 4 S. W. 727; Powell v. Hurt, .31 Mo. App. 632; State ex rel. Langston v. Zorn, 138 Mo. App. 713, 119 S. W. 517. i-'f Skinner v. Ellington, 15 Mo. 490; Rozelle v. Harmon, 103 Mo. 339, 15 H. W. 4.32, 12 L. R. A. 187. 160 State, to Use of Rarland, v. Porter, 9 Mo. 356; State, to Use of Shields, v. Flynn, 48 Mo. 413; State, to Use of Coste, v. Fulton, 35 Mo. 323; State ex rel. Langston v. Canterbury, 124 Mo. App. 241, 101 S. W. 078. iGiRev. St. 1909, § 56; State ex rel. Langston v. Zorn, 138 Mo. App. 71.3, 119 S. W. 517; State ex rel. Langston v. Canterbury, 124 Mo. App. 241. 101 S. W. 678. 162 Rev. St. 1909, § 57. § 168 EXECUTORS AND ADMINISTRATORS 163 ascertain what quantity and kind of real and personal prop- erty, rights, credits, deeds, evidences of debt and papers of ev- ery kind, of the testator or intestate, were in the hands of such deceased executor or administrator at the time of his death, and order the le^al representatives of such deceased executor or administrator to deliver the same to his successor or the remaining or surviving executor or administrator, and to en- force such order by attachment against the person or property of such legal representatives of the deceased executor or ad- ministrator/"^ This remedy is in addition to an action on the bond.^«* Petition by Adiniiiistrafor, Dc Bonis Xon, for Judgment Against Securities of former Admi)iistrator In the matter of the estate of ( In the Probate Court of K. K., deceased. ( County. Your petitioner, J. D., administrator de bonis non of tlie estate of K. R.. deceased, respectfully represents to tlie court that James Fry, late administrator of said estate, died on the day of — [ ^ 10_; that on the day of , 19—, your petitioner was appointed administrator of said estate as the successor of James Fry. deceased ; that II. J. and B. W. are the securities in the bond of tlie said James Fry. deceased, as the adnunistrator of said estate; that at the time of the death of the said James Fry there had come into his hands and remained unaccounted for in his representative capacity the sum of dollars, belonirfng to the estate of the said R. R., deceased. Your petitioner therefore makes application to this court, and aslis that the court ascertain the amount of money belonging to the said R. R., deceased, which remained in the hands of the s^iid James Fry, deceased, or came into his hands and remained unaccounted for. in his representative capacity, at the time of liis death, and render judgment against said H. J. and B. W., the seciuities aforesjiid in the bond of said James Fry, deceased, for the amount so ascertained and for costs. J- ^•' Administrator de Bonis Non, etc. This form is intended to apply to a case arising under the fifty-seventh section, but with a little care it may be also adapt- ed to any case arising under the fifty-eighth section, or any other statute on the subject. 1C3 Rev. St. 1000, § 58; State ex rel. Fountain v. Gray, 100 Mo. 526, 17 S. W. 500 ; Fielder v. Rose. 61 Mo. App. ISO. io4\vickham v. Page, 49 Mo. 526; State ex rel. Crane v. Hein- richs, 82 Mo. 542; State ex rel. Johnson v. Withrow. lOS Mo. 1, IS S. W. 41 ; Morehouse v. Ware, "S Mo. 100 ; State ex rel. Langston V. Zorn, 13S Mo. App. 713, 119 S. W, 517. 164: EXECUTORS AND ADMINISTKATOKS § 169 § 169, Same — Notice and Judgment. — No judgment or order can be rendered against any of the parties mentioned in the fifty-sixth, fifty-seventh, and fifty-eighth sections of the statute above mentioned, until they are served with notice, in writing, at least fifteen days before the sitting of the court, of the time and place of the sitting thereof. The notice must be issued and signed by the clerk of the court, if there be one, and if not, by the judge thereof, and be served in the manner provided by law for the service of process in civil actions. ^*'' The notice may be in the following form: State of Missouri, | County of . j The State of Missouri to the Sheriff of County, Greeting: Whereas, J. D., administrator de honis non of the estate of R. R., deceased, has made complaint, to tlie prol^ate court of said county, that at the time of the death of the said James Fry, late adminis- trator of said estate, he had in liis hands as such administrator a large sum of money, to-wit: the sum of dollars, which be- longed to said estate; and that H. J. and B. W. are the securities in the bond of said .James Fry, deceased, as administrator of said estate, and asking the court to ascertain tlie amount of money be- longing to the estate of said R. R., deceased, which remained in the hands of said James Fry, or came into his hands and remained un- accounted for in his representative capacity at the time of his death, and render judgment against the said H. J. and B. W., the securities in the bond of said James Fry, deceased, for the amount so ascer- tained. You are tlierefore hereby commanded that you give notice to the said H. J. and B. W., that they be and appear before the probate court of county, at a term thereof, to be held at the court house (or usual place of holding courts), in , on the day of , 19 — , tlien and there to answer in the premises ; and fur- ther, to do and perform what shall then by said court be required and adjudged. And hereof make due service and return as the law directs. Witness, J. R., clerk of said probate court, for the county of , and the seal of said court hereunto annexed, at office, in . this day of , 19—. J. R., [L. S.] (Style of office.) This notice may be adapted to any case arising under the foregoing provisions of the statute. If the parties are not all properly served with process, the court may proceed against 165 Rev. St. 1909, §§ 59, 60; Wickham v. Page, -19 Mo. 526; Brown V. Weatherby, 71 Mo. 152; Scott v. Crews, 72 Mo. 201; Lewis v. Carson, 16 Mo. App. M2 ; State ex rel. Johnson v. Withrow, lOS Mo. 1, 18 S. W. 41; Citizens' State Bank v. Berry, 79 Mo. App. 472; State ex rel. Langston v. Canterbury, 124 Mo. App. 241, 101 S. W. G78. § 169 EXECUTORS AND ADMINISTRATORS 1G5 those who are served and dismiss as to those who are not served, or continue the proceedings until the next term of the court, and issue new notices against those not served, at its discretion.^*"'" The entry of the judgment in this proceeding may be as follows : In the matter of the estate of ] R. K., deceased. | Now comes J. D., administrator de bonis non of the estate of R. R., deceased ; and come also J. H. and B. W., the s<'curities in the bond of James Fry, deceased, late the administrator of said estate; and the court having heard the evidence adduced and fully investi- gated the account of the said James Fry, with said estate, doth find that, at the death of said James Fry there remained in his hands the sum of dollars in money, which belonged to the estate of R. R. deceased. It is therefore adjudged by the court that said J. D., as such adnunistrator, shall have and recover of and from the said J. H. and B. W., securities as aforesaid, in the bond of said James Fry, deceased, the said sum of dollars, so found as aforesaid to be in the hands of said James Fry, deceased, in his representii- tive capacity, at the time of his death, together with costs of this proceeding, taxed at dollars and cents. And that ex- ecution issue therefor. It has been held that settlement between a removed or former administrator and his successor is not a final settle- ment of the former's account, and does not have the force of a judgment. And the burden is on such administrator to show a full accounting.^"'' But where an administrator de bonis non was a party to a settlement made by the adminis- trator of a deceased administrator of said estate, it was said that such administrator de bonis non represented the cred- itors and others interested in the estate, and that such settle- ment should be regarded as a final settlement and conclusive as to all matters included in it or necessarily involved in such a settlement. ^•'^ 166 Rev. St. 3009, § 61; State ex rel. Johnson v. Withrow. lOS Mo. 1, 18 S. W. 41. ic- Emmons v. Gordon. 125 Mo. 636, 28 S. W. 863; In re Estate of Glover. 127 Mo. 153. 29 S. W. 9S2 ; State, to Use of Piles, v. Rich- ardson, 29 Mo. App. 595 ; Emmons v. Gordon, 140 Mo. 490, 41 S. W. 998. 62 Am. St. Rep. 734; State ex rel. Jacobs v. Elliott, 157 Mo. 609, 57 S. W. 1087, SO Am. St. Rep. 643. 168 state ex rel. Fountain v. Gray, 106 Mo. 526, 17 S. W. 500; Patterson v. Booth. 103 Mo. 402. 15 S. W. 543; State ex rel. Crane V. Ileinrichs. 82 Mo. 542 : Ro Bards v. Lamb, 89 Mo. 303, 1 S. W. 222 ; Van Bibber v. Julian, 81 Mo. 618. 166 EXECUTORS AND ADMINISTRATORS § 160 The administrator de bonis non is entitled to all the assets belonging to the estate not administered whether in specie or not.^*^" He may sue his predecessor upon his bond for fail- ing to comply with an order of distribution; ^^^ or to account to him for the assets in his hands ; and the circuit courts have original jurisdiction in such action,^ ^^ 169 state, to Use of Coste, v. Fulton. 35 Mo. 323; State ex rel. Col- lins V. Dulle, 45 Mo. 269 ; State, to Use of Burrough, v. Farmer, 54 Mo. 439 ; Seymour v. Seymour, 67 Mo. 303 : Scott v. Crews, 72 Mo. 261; State ex rel. Crane v. Heinrichs, 82 Mo. 542; Booker v. Arm- strong, 93 Mo. 49, 4 S. W. 727; Brown v. Weatherby, 71 Mo. 152; Powell V. Hurt, 31 Mo. App. 632. 170 Morehouse v. Ware, 78 Mo. 100; Scott v. Crews, 72 Mo. 261. 17 1 State ex rel. Johnson v. Withrow, 108 Mo. 1, 18 S. W. 41; State ex rel. Crane v. Heinrichs, 82 Mo. 542. § 170 executoe's right to assets 167 CHAPTER XVI OF THE RIGHTS OF EXFCUTOUS AND ADMIXISTKATOKS IN THE PROPERTY OF DECEDENTS § 170. Assets, what are. 171. When tlie estate vests in the personal repre.sentative. 172. The nature of the interest of the representative. 173. Same — When it becomes bis own proi)erty. 174. Same — As to realty. 175. His right to chattels real. 176. His right to chattels personal — Division of chattels. 177. Same — Chattels animate. 178. Same — As to vegetal)les, trees. 179. Same — Growing crops — Emblements. 180. Same — As to fruits, etc. 181. Chattels inanimate. 182. Same — Choses in action. 183. Same— Fixtures. 184. Same — As to tenants, etc. 185. Same — As between tenant and landlord. 186. Same — Fixtures as trade or agriculture. 187. Removal of fixtures. 188. As to leases. 189. As to rents. 190. As to stocks. 191. As to annuities. 192. As to prt)perty held in trust. 193. As to patents. 194. As to copyright. 195. As to policies of insurance. 196. As to apprentices. 197. As to partnership effects. 198. As to goods mortgaged. 199. As to separate property of wife. 200. Same — By statute. 201. Same — When the wife survives. 202. Same — When the husband survives. 203. Donatio mortis causa. § 170. Assets — What Are. — Assets consist of all those goods and chattels which were of the deceased in right of action or possession as his own. and so continued to the time of his death, and which after his death go to the ad- ministrator as beloni^ini;' to him in trust, by virtue of his office, for those interested in the estate.^ So that when the 1 McPike V. McPlke, 111 Mo. 216, 20 S. W. V2: r.lount v. Hamey, 4.'! Mo. App. 644; Roeger v. Langenberg. 42 Mo. App. 7: McMillan 168 executor's right to assets § 171 administrator claims a fund or property his right to it will be measured and tested by the same rule that would be ap- plied to the decedent were he alive and claiming it." § 171. When the Estate Vests in the Personal Rep- resentative. — It is generally understood that the title of an executor in the personalty of the decedent is derived ex- clusively from the will ; that it vests in him at the moment of the testator's death, and can only be divested by opera- tion of law or some act or omission of his own.'* The law knows no interval between the testator's death and the vesting of the right of property in his personal effects in his excutor ; and although the probate of the will and grant of letters are, under our law, an indispensable prerequisite to the right of an executor to administer, yet when the will is proven and letters granted, his right is regarded as accruing by relation from the time of the testator's death.* An administrator derives his title by appointment from the court. ^ Even an executor who derives his power from a will, must qualify and be appointed by the court before he is entitled to deal with the property.** The common law doctrine, which regarded the personal representative as the absolute owner of the personalty be- longing to the deceased, does not prevail here, and his power to dispose of the assets is limited and regulated by law.'^ He is merely the agent or trustee of the estate clothed with special and limited powers under the administration law.^ He alone has the right to the possession and can sue therefor, unless the probate court shall by an order dis- pense with an administration on the estate, in which case the widow of minor heirs may recover the property.'' He is V. Wacker, 57 Mo. App. 220; McCracken v. McCaslin, 50 Mo. App. 85 ; Grand Lodge A. O. U. W. v. Dister, 77 Mo. App. 608. ■^ Tierman's Ex'r v. Security Building & Loan Ass'n, 152 Mo. 135, 58 S. W. 1072 ; Tye v. Tye, 88 Mo. App. 3.30. 3 Foole V. Tolleson, 1 McCord (S. C.) 199. 10 Am. Dec. 663. 4 1 Williams, Ex'rs, 55G; Lamb v. Helm, .56 Mo. 420; Staggv. Green, 47 Mo. 500; McMillan v. Wacker. 57 Mo. App. 220. 5 Wilson V. Wilson, 54 Mo. 213. 6 Borland on Wills, § 82 ; Stagg v. Linnenfelser, 59 Mo. 341. 7 Stagg V. Linnenfelser, 59 Mo. 336 ; Chandler v. Stevenson, 68 Mo. 450. 8 Cape Girardeau County, to Use of Road & Canal Fund v. Harbi- son, 58 Mo. 90. y In re I'url's Estate. 147 Mo. App. 10.5. 125 S. W. 849; Grand Lodge A. O. U. W. v. Dister, 77 Mo. App. 608. § 171 executok's right to assets 169 not the representative of the creditors, ^° neither will his promise bind the estate/^ and he cannot revive a debt bar- red by the statute of limitations/- nor mortgage the real estate of the deceased/^ nor use as assets property previ- ously conveyed by deceased to defraud his creditors,^* nor dedicate land to public use without a will or decree of court authorizing it.^^ Nor can he maintain an action to set aside a conveyance made by the deceased in fraud of creditors, although the estate is insolvent.^" After the death of the intestate, his personal property may be considered in abeyance until administration is granted, and it vests in the administrator by relation from the death of the decedent.^ ^ Thus the administrator may sue for torts or trespasses committed against the property of the decedent before his appointment and after the death of the deceased. ^^ But this rule does not apply to injury to goods held by the deceased in his representative ca- pacity, the title to which, on his death, vests in others.^* The relation back of the title of the administrator to the death of the deceased, is to prevent injustice and the occur- rence of injuries where there could otherwise be no recov- ery, and therefore will only be allowed in cases where the ends of justice will be subserved, and never where it would produce the opposite result.^" The title to all personal ef- fects, though in different and distant places, generally vests in the executor the possession, as it is a rule of law that the title of personal chattels draws to it the possession,-^ 10 Crawford's Adm'r v. Lelir, 20 Kan. 512, 11 Brown v. Evans, 15 Kan. 88. 12 Hanson v. Towle, 19 Kan. 273; Cape Girardeau County, to Use of Road & Canal Fund, v. Harbison, 58 Mo. 90. 13 Black V. DresselTs Heirs, 20 Kan. 153. 14 Crawford's Adm'r v. Lelir, 20 Kan. 512, isKainie v. Harty, 73 Mo. 316. 16 Brown's Adm'r v. Finley. 18 Mo. 375; George v. 'Williamson, 26 Mo. 190, 72 Am. Dec, 203 ; Merry v. Fremon, 44 Mo. 518. i7Jewett V. Smith, 12 Mass. .309; Lawrence v. Wright, 23 Pick. (Mass.) 128; Rockwell v. Saunders. 19 Barb. (N. Y.) 473; Sher- wood's Adm'r v. Hill, 25 Mo. .391 ; Wilson v. Wilson, 54 Mo. 213. 18 Foster v. Pollard. 12 M. & W. (Eng. Ex.) 22G; Rockwell v. Saun- ders, 19 Barb. (N. Y.) 473. 19 Elliott V. Kemp, 7 M. & W. (Eng. Ex.) 306. 20 1 Retlfield on "Wills, 115; 1 'U'illiams, Ex'rs. 557; Lawrence v, 'Wright 23 Pick. (Mass.) 128; Wilson v. Wilson. 54 Mo. 213. 211 Williams, Ex'rs, 560; In re Purl's Estate, 147 Mo. App. 105, 125 S. W. 849. 1~0 executor's eight to assets § 172 § 172. The Nature of the Interest of the Representative. — The executor or administrator represents the decedent in respect to his personal estate, and has the same property in it that the deceased had at the time of his deaths and may recover it by action. Yet, his interest in the property of the deceased is very different from that of an absokite owner in his own proper goods; it is only temporary and qualified. He holds the eft'ects, in autre droit, as the min- ister or dispenser of the goods of the dead, as trustee for the creditors and distributees, and not for his own benefit. ^^ He will not be allowed to retain any personal advantage from the use of the estate. ^^ If he uses the funds of the es- tate in his own business and loss results, he must make it good to the estate, and if profits are made he must account for them. 2* If he buys or settles a claim against the estate for less than its face, he can receive a credit only for the amount paid out." If he owes the estate, such indebted- ness is an asset in his hands.-'' The effects of the decedent in the hands of the representa- tive cannot be seized on execution against him in his own right; nor be made liable for his dcbtp bv attachment or garnishment; ^^ nor are they liable for his debts in case of his death, in the hands of his executor; nor can he dispose of them by will. In fine he cannot transmit any interest in the property of his decedent to his own personal rep- resentatives 2 2 Prewitt V. Martin, 59 Mo. 325; State ex rel. Towushend v. Meagher, 44 Mo. .'ioe, 100 Am. Dee. 298; Collamore v. Wilder, 19 Kan. C7; Cape Girardeau County, to Use of Road & Canal Fund, v. Har- bison, 58 Mo. 90 ; State, to Use of Wolff, v. Berning, 74 Mo. 87 ; Wolff V. Schaeffer, 74 Mo. 154; Tiemann v. Molliter, 71 Mo. 512; Lessing V. Vertrees, 32 Mo. 431; 1 Williams, Ex'rs, 562; Tierman's Ex'r v. Se- curity Building & Loan Ass'n, 152 Mo. 1.35, 53 S. W. 1072 ; McCraclcen V. McCaslin. .50 Mo. App. 85; Orchard v. Wright-Dalton-Bell-Anchor Store Co.. 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072 ; Crohn v. Clay County State Bank, 137 Mo. App. 712, 118 S. W. 498 ; Seilert V. MeAnally, 223 Mo. 505, 122 S. W. 1064, 135 Am. St. Rep. 522. 2 3 Gamble v. Gibson, 59 Mo. 585; Stitt v. Stitt, 205 Mo. 155, 103 S. W. 547. 2 4 Merritt's Estate v. Merritt, 62 Mo. 150; Cape Girardeau County, to Use of Road & Canal Fund, v. Harbison, 58 Mo. 90. 2 5 Hull V. Voorhis, 45 Mo. 5.'>5. 26 Young V. Thrasher, 48 Mo. App. .327; State ex rel. Jones v. Jones, 53 Mo. App. 207; Wilson v. Ituthrauff, 82 Mo. App. 435. 2 7 Le.ssing v. Vertrees, 32 Mo. 431. § 173 executor's eight to assets 171 § 173. Same — When It Becomes His Own. — As a gen- eral rule, at coniinon law, the husband is entitled by mar- riage to all the personal property of the wife, possessed by her at the time of the marriage, or afterward, in her own right, yet the marriage gives him no interest in property held by her in autre droit, as executrix or administratrix; nor has he any right to intermeddle with the same in any manner by virtue of the marriage. In such case her mar- riage extinguishes her powers and revokes her letters.-'* If the executor or administrator sell or pledge the assets as security for or in payment of his individual debt, such transaction would be voidable and might be annulled by those interested in the estate.-" And if he should charge himself with a fund which does not belong to the estate, he may correct the charge in his final settlement.-^" There are perhaps ways and means by which the property of the decedent held by the executor or administrator, may be- come his own, as other goods, to his own use. For in- stance, it is claimed by text writers, that money left by the decedent, or coming into the hands of the representative, and being intermixed with his own money, is incapable of being distinguished from it, and the property in the specific coin must of necessity be altered."^ So, if he accounts in his final settlement for a claim as so much money, it be- longs to him by operation of law.^- But as long as the money can be traced or identified, the representative will have no other or different interest in it than he has in other effects of decedent. And where the executor is a legatee, by assenting to his own legacy, the thing bequeathed vests in him. So, if he is residuary legatee and gives bond for payment of the debts and legacies, and an administrator who is entitled to a share as distributee in the estate, may acquire a legal title in his own right, to goods of the de- ceased, either by taking them by agreement with the other distributees, or by appropriating them to himself as his own share.^^ And if he buys the interest of a distributee 2 8 Rev. St. 1!X)0. § 4!); Carr v. Spannagel, 4 Mo. App. liS4; Viel- haber v. Eyeriiiaiiii, 1 Mo. App. 115. 2 9 Boe.uor v. Lansonbcrg. 4:.' Mo. App. 7. soMcPike v. MePike. Ill Mo. 210, 20 S. W. 12. 31 1 Williams, Ex'rs. 572. 3 2 Smith V. Gre>,'ory. 75 Mo. 121. 33 1 "WiUiams, Ex'rs, 574. 172 executor's right to assets § 174 he would be entitled to credit for it in a suit on his bond by a successor.^* § 174. Same — As to Realty. — The personal representa- tive, as a general thing, has no control over the real estate of the deceased, and while he has a right to rents accruing before the death of the decedent, he is not entitled to and cannot maintain a suit for rent accruing or a trespass com- mitted, after the death of the decedent, because the lands descend to the heirs or devisees, and they, as owners, have a right to the rents, and are the proper parties to sue for an injury to the freehold.^^ But where the personal es- tate is insufficient to pay the debts and legacies, the court may authorize the executor or administrator to rent the realty for a term not exceeding two years.^^ And if, without such order he should receive the rents under color of his office as administrator, he will be required to account for them.^^ And upon a proper showing the court may order a sale of the real estate to meet the liabilities of the estate. Whenever letters of administration or testamentary shall have been granted on an estate, and it shall appear to the court, or judge in vacation, that the decedent died possessed of real estate in the state, and his heirs, or legatees have failed to take charge of same, or the identity or whereabouts of such heirs or legatees are unknown, then the court or judge in vacation may on its or his own motion, or that of any party interested, direct the administrator or executor in charge of said estate to take charge and manage the real estate, until such time as such heirs and legatees shall ap- pear and petition the court to turn the management of said 3 4 Scott V. Crews, 72 Mo. 261. 35Aubuchon v. Lory, 23 Mo. 99; Sturgeon v. Schaumburg, 40 Mo. 4S2; Gaml)Ie v. Gibson, 59 Mo. 585; Bealey v. Blake's Aduj'r, 70 Mo. App. 229; Landree v. Warren, 53 Mo. App. 442; Hall v. Farmers' & Merchants' Bank, 145 Mo. 418, 46 S. W. 1000; Grant v. Hathaway, 215 Mo. 141, 114 S. W. 609, 15 Ann. Cas. 567; McQuitty v. Wilhite, 218 Mo. 586, 117 S. W. 730, 131 Am. St. Rep. 561 ; Smith v. Black, 231 Mo. 681, 132 S. W. 1129. 36 Rev. St. 1909, § 139; Lass v. Kisleben, 50 Mo. 122; Grant v. Hathaway, 215 Mo. 141, 114 S. W. 609, 15 Ann. Cas. 567; Hall v. Farmers' & Merchants' Bank, 145 Mo. 418, 46 S. W. 1000; Meeks V. Clear Jack Miu. Co., 141 Mo. App. 648, 124 S. W. 1084; McQuitty V. Wilhite, 218 Mo. 586, 117 S. W. 730, 131 Am. St. Rep. 501. 3 7 Mel'ike v. McPike, 111 Mo. 216, 20 S. W. 12; St. Louis Nat. Bank V. Field, 156 Mo. 306. .56 S. W. 1095. § 174 executor's right to assets 173 real estate over to them, or until the same shall escheat to the state as is provided by the ''escheat act."^*' An executor may dispose of real estate for the payment of debts or legacies, or for any other purpose specified, when the power so to do is expressly conferred by the will.^'' But this power is personal and cannot, without the aid of the statute,'" such as there is in this state, be ex- ercised by an administrator cum testamento annexe." To enable an executor to sell real estate, the power must be expressly given or necessarily implied, as where a sale is directed, in general terms, without naming by whom it shall be made, and the avails are to go in payment of the debts or legacies." A testator may by his will, direct an ab- solute conversion of his real estate, or any part of it, into money for general purposes, and in such case, the avails of the land become personal estate, to all intents, the same as if it had never been land. It seems that a mortgagee's ti- tle to real estate vests, on his decease, in his executor or administrator, as an incident to the indebtedness secured by the mortgage, which goes to the representative." And when the debt is satisfied the executor or administrator must release the mortgage. It has been said that a devise of land to executors to sell, passes the interest in it, but a devise that executors shall sell the land, or that land shall be sold by executors gives but a power. But the true rule would seem to be in this country, that a devise of land to be sold by the executors, without giving the estate to them will invest them with a power only, and not give them an interest.^'' It may be proper to remark here, that if land be sold for a specific purpose, under a mortgage or by an order of court, as for the payment of debts and legacies, any surplus money arising from the sale will be, as between the heirs and distributees, considered as land, and, they will be entitled to it the same as if it had remained uncon- verted." But after it has thus vested in them, it will be 3 8 Section 139a. Rev. St. 1909, as added by Laws 1911, p. SO. 39McQuitty V. Wilhite. 218 Mo. 586, 117 S. W. 730, 131 Am. St. Rep. 561 ; Smith v. Black, 231 Mo. 681, 132 S. W. 1129. 4 Rev. St. 1909, § 141. 412 Kedfield on Wills, 121; Phillips v. Stewart, 59 Mo. 491. 4 2 Redfield on Wills, 142. 4 3 Taft V. Stevens, 3 Gray (Mass.) 504. 4 4 Foote V. Sanders, 72 Mo. 616. 4 5 In re Lloyd's Estate, 44 Mo. App. 670. 174 executor's right to assets § 175 treated as money in their hands, and will go to their per- sonal representatives as personal estate in the event of their decease. § 175. Their Right to Chattels Real. — The general rule is that chattels real go to the executor or administrator and not to the heirs. ■'^^ Chattels real are interests issuing out of or annexed to the realty and include estates for years, at will, by sufferance, and various interests of uncertain duration.*^ Leases for a definite period, however long, are classed as personal property and go to the administrator or executor.*® This is true, notwithstanding the statute which provides that dower shall be assigned in leases for a term of twenty years, or more, as in real estate.*" As w'ill be hereafter noted, leasehold estates for an unexpired term of three years or more are not subject to sale as per- sonal property, but such sales are controlled and governed by the statutory provisions relating to the sale of real es- tate.^" All estates for life, or for an uncertain period which may endure for life — as during widowhood, or so long as one shall remain unmarried, or during coverture, or as long as the grantee shall dwell in a particular place — are re- garded as freehold estates and go to the heirs. -'^ And when the words used in the disposition of personal property would, if applied to real property, give an estate tail, they pass an absolute interest in the personalty.^- A devise of the wife's chattels real will not divest her interest if she survives the husband, but, if, after being ejected, the hus- band bring an action in his own name and recover, this will divest the interest of the wife, except as to separate estate. 46 Orchard v. Wright-Dalton-Bell-Anchor Store Co., 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072; 1 Woerner's American Law of Administration, 590. 4 7 liapalje & Lawrence, Law Diet. p. 200. 48 Sutter V. Lackmann, ?,9 Mo. 97; Scliee v. Wiseman, 79 Ind. 392; Orcliard v. Wright-Dalton-Bell-Anclior Store Co., 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072. 49 Rev. St. 1909, § 345; Orcliard v. Wriglit-Dalton-Bell-Anchor Store Co., 225 Mo. 414, 125 S. W. 480. 20 Ann. Cas. 1072. GO Orchard v. Wrij,'ht-Dalton-Bell-Auchor Store Co., 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072. 51 2 Blacli. Com. 386. 5 2 Halbert v. Ilalbert, 21 Mo. 277. §177 executor's right to assets !"«"» § 176. Their Right to Chattels— Division of Chattels.— Chattels personal are, properly and strictly speakinj^, lhinj.(s movable ; which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. Such are animals, household stulTf, money, jewels, coin, garments, and everything else that can be properly put in motion, and transferred from jjlace to place." Improvements upon leasehold property which the lessee or tenant has a right to remove at the end of the term are chattels; ^^ and crops raised by yearly labor and cultivation are chattels.'' '• All these and other things of the same nature generally speaking, belong to the ex- ecutor or administrator.'^" This subject is usually divided into chattels animate, chattels vegetable and chattels in- animate. § 177, Same — Chattels Animate are such as are domes- tic, and such as are ferae naturae — tame and wild animals. In such as are of a tame and domestic nature, as horses, cattle, sheep, hogs and poultry, and the like, a man have an absolute property. They are therefore capable of being transmitted, like any other property, to the executor or ad- ministrator; and the increase of the female belongs to the owner of the dam.''" In those of a wild nature, such as are usually found at liberty and wandering at large, generally speaking, a man can have no such property as will go to his representatives. But if a man reclaim this class of an- imals, and tame them by art, industry or education ; or, if he confine them within his own immediate control so that they cannot escape and use their natural liberty, he thereby acquires a qualified property in them, and they will, in such case, pass to his representatives, as other animals. If, however, they at any time regain their liberty, the con- trol being gone, the property in them ceases, unless they are such kind as ha1>itually return.''^'* In this country, dogs. however useful, are not regarded as personal estate in the 53 2 Black. Com. 387, 388. 5* Dryden v. Kellogg, 2 Mo. .\pp. ST; Tiulor Iron Works v. Ilitt, 4J) Mo. App. 472. nr. Baker v. Mclnturff, 4i) Mo. App. oOo; Gartli v. Caldwell, 72 Mo. 622. 56 1 Williams, Ex'rs. (!24 ; Blount v. Ilanioy, 43 Mo. App. 044. BT Eduionston v. Wilson. 49 Mo. App. 401. 6S1 Williams, Ex'rs, 025. 176 executor's right to assets § 178 hands of the representative ; we have never known one to be inventoried. But in England, where people take great delight in the cry of the hound, as exhilarating music, a value is attached to him as an article of amusement and profit, and he goes to the representative. Again, in that country, deer in a park, conies in a warren, and doves in a dove house, fish in a pond, etc., are regarded as a part of the inheritance, and go to the heir.^® § 178. Same — As to Vegetables — Trees. — Personal ef- fects of a vegetable kind are the fruit or other parts of a plant or tree, when severed from the body of it; or the plant or tree itself when severed from the ground. Trees not severed from the ground in general, go with the land to the heir. So apples, pears, peaches and other fruit, grow- ing or hanging on the trees at the time of the decedent's death, go to the heirs, unless the family of the decedent take such fruit, by reason of their right to remain in the homestead during the settlement of the estate; at all events it does not go to the representative. But there are cases where timber and trees not severed from the land may be treated as assets and pass to the representative. Thus, if one buys trees from the owner of the soil, they are, in contemplation of law, divided as chat- tels from the freehold, and should the purchaser die be- fore cutting them, they pass to the representative as part of the personalty. So if the owner sells the land and re- serves the trees, they will be regarded as personal prop- erty, and his representative will have the right to cut and remove the trees, and treat them as assets. Trees cut for fuel for the use of the owner of the land will go to the fam- ily, as other articles provided for their consumption. But fire wood cut for sale, or other wood, as rails, saw-logs, hoop-poles, staves, or other materials, cut for the purpose of merchandise, are assets and go to the representative. § 179. Same — Growing Crops — Emblements. — There are however, certain vegetable products of the earth which, al- though they are annexed to and growing upon the land at the time of the occupant's death, yet as between his execu- tor or administrator and the heir, are considered by law as chattels and will pass as such. These are usually called 59 1 Williams, Ex'rs, 625. § 180 executor's right to assets 177 emblements. The vegetable chattels so named are the grain and other products of the earth which are produced annually — not spontaneously, but by labor and industry. \\ hen the occupant of the land, whether he be the owner of the inheritance or of an estate terminating with his own life, has sown or planted the soil with the design of rais- ing a crop of such a nature, and dies before harvest time, the law gives to his representative the profits of the crop, to compensate for the expense of tilling, manuring and sowing the land,**" even though the land be devised.*^ ^ Em- blements included not only corn and grain of all kinds, but everything of an artificial and annual profit that is produced by lal)or and manurance; as hemp, Hax, potatoes, and mel- ons of all kinds, and hops also, although they spring from old roots, because they are annually manured and require cultivation. § 180. Same — As to Fruits, etc. — But the rule does not apply to the fruit growing on trees, nor to planted trees ; for the general rule is, whatsoever is affixed to the soil passes with the soil ; and when a man plants a tree it is not for the present profit, but for the hope of its future use to himself and to future successions of tenants. There- fore, if a man sow his land with acorns or plant young fruit trees, or oak, elm, ash, or other trees, these cannot be treated as emblements. Trees, shrubs, and other growth planted by gardeners and nurserymen, with an express view to their sale, are an exception, for they are removable, as emblements are, by the representative. If one not be- ing a nurseryman by trade, plants a nursery of fruit or other trees, for the purpose of transplanting on the same land, they pass, on his death, to the heir or devisee. The grow- ing crop of grass, even if sown from seed, and ready to be cut for hay, cannot be taken as emblements; but it is said that artificial grasses, such as clover or Hungarian grass, and the like, by reason of the greater care and labor neces- sary for their production, are within the rule of emblements. And as we have seen, all annual crops raised by labor, such as wheat, corn, oats, rye, buckwheat, etc., whether grow- ing or severed from the land or not, at the time of the de- 60 Whaley v. Wlialey, 51 Mo. ?,C>: Raker v. Mcluturff, -49 Mo. App. 505; Garth v. Caldwell 72 Mo. G22. 61 Humphrey v. Merritt, 51 Ind. 197. KEL.MO.P.G.— 12 178 executor's right to assets § 181 cedent's death will belong to the personal representative. "- If a man sow lands of his wife not her separate estate, and die before the crop is severed, his executor or administrator is entitled to it as emblements. But if the crop was sown before the marriage or upon her separate estate, the wife will hold it. And if husband and wife are joint tenants, and the husband sow, and die before the crop is severed, the emblements go with the land, to the wife. Upon the death of a tenant, by the curtesy, like any other tenant for life, the emblements of the estate held by the curtesy will go to his representative. So in the case of the death of a tenant at will, his representative is entitled to emblements. Where there is a right to emblements, the law gives a free entry, egress and regress, as much as is necessary, in order to cut and carry them away. § 181. Chattels Inanimate — Such as are Evident. — Per- sonal chattels inanimate are said to be evidently these, viz: all household stuff, implements, money, plate, jewels, corn, grain, hay, wood felled and severed from the ground, wares, merchandise, carts, coaches, saddles and such like movable things. All these pass to the personal representative ; and although any one of them should be specifically bequeathed to a legatee, it will not vest in him till the executor has assented."^ The subject of chattels inanimate, as to things not so evident as those named, will require a more extended notice at our hands. § 182. Same — Choses in Action. — The personal repre- sentative succeeds to all the rights of the decedent as re- spects choses in action, as of the day of the decease."* A cause of action arising out of an injury to the person, such as assault and battery, false imprisonment, slander, libel, and the like, dies with the death of either party, except in those cases where the common law has been changed by statute. All other causes of action survive, and may be brought by or against the executor or administrator of the deceased, except actions for the breach of marriage con- C2 Whaley v. Whaley, 51 Mo. 36; Humphrey v. Merritt, 51 Ind. 197; Baker v. Mclntiuff, 49 Mo. App. 505; Winn v. Riley, 151 Mo. 61, 52 S. W. 27, 74 Am. St. Rep. 517. 63 1 Williams, Ex"rs, 640. <■'■* Ileidenhelmer v. Wilson, 31 Barb. (N. T.) 63G; Beecher v. Buck- ingham, 18 Conn. 110, 44 Am. Dec. 580. § 182 executor's right to assets 179 tract. "^ There are many actions in the form of tort where the surviving of the cause of action will depend upon the act of the negligence from which it arises having produced injury to the estate of the deceased, as where the default was in investigating title to an estate. The rules of the common law concerning the survival of causes of action for personal injury suffered by the de- ceased have been greatly modified by statute in Missouri and other states. Under the statutes of Missouri, upon the death of a person as a result of the wrongful act, neg- lect, or default of another, where the act, neglect, or de- fault is such as would, if (kath had not ensued, have enti- tled the party injured lo maintain an action and recover damages, the cause of action so arising descends: First, to the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then to minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then to the father or mother who join in the suit, each to have an equal interest in the judgment; or, fourth, if there be no husband, wife, minor child, or minor chil- dren, natural born, or adopted, or the deceased be an un- married minor and there be no father and mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased, and the amount recovered shall be distributed according to the laws of descent.^" It is further provided by statute that where suit has been brought for personal injuries, other than those resulting in death, whether such injuries be to the health, or to the person, the cause of action shall not abate by reason of the death of the injured, nor by reason of the death of the person against whom the action is brought; but such cause of action shall survive to the personal representative of the plaintiff and against the personal representative of the defendant — the liability and measure of damages remaining the same as if such death or deaths had not occurred.''' 65 Rev. St. 1909, §§ 10.">, lOG; Beck v. Dowell. 40 Mo. App. 71; Stan- ley V. Bircher, 78 Mo. 247 ; Davis v. Morgan, 97 Mo. 70. 10 S. W. SSI ; Alexander v. Grand Ave. Ky. Co., 54 Mo. App. GO; Gilkesou v. Mis- souri Pac. Ry. Co., 222 Mo. 173, 121 S. W. 138, 24 L. R. A. (N. S.) 844, 17 Ann. Cas. 763. 66 Rev. St. 1009, § 5425, as anunded by Laws 1011, p. 203; Rev. St. 1009, §§ 105, lOG. C7 Rev. St. 1009, § 5438. 180 executor's right to assets § 182 When there is a breach of covenant for title running with the land in the lifetime of the decedent, if the principal in- jury be to the inheritance, the action will belong to the heir and not to the representative. But when the ultimate damage is sustained in the lifetime of the decedent, as where he is turned out of possession of the land, and the land and consequently the covenant in the deed does not descend to the heir, the personal representative only can sue on the covenant. And, in general, when, by a breach of covenant relating to land occurring in the life of the decedent, the personal estate is lessened, the representa- tive, and not the heir is the proper person to sue. The per- sonal representative may maintain an action for trespass on real estate, committed in the lifetime of the decedent.''^ And where deceased had judgment in his lifetime in an action of unlawful detainer for possession and for damages, the administrator and not the heir should have execution for the damages.^® We may lay it down as a general rule that the personal representative may sue, not only for all debts due to the decedent by specialty or otherwise, but for all covenants and all contracts with the decedent broken in his lifetime; the cause of action in which the decedent might have sued in his lifetime survives his death and is transmitted to his personal representative; and of course the representative may sue on all contracts, express or im- plied, made with him after the decedent's death, and for injury to the goods in his possession, or for their detention, or for the price of them. § 183. Same — Fixtures. — There are also personal chat- tels inanimate called fixtures. These are articles which were chattels, but have become a part of the realty, by having been let into or united with the land, or to substances previously connected therewith. It is not enough that it has been laid upon the land and brought into contact with it. More than mere juxtaposition is required; as, that the soil has been dis- placed for the purpose of receiving the article, or that the chat- tels be connected or fastened in some mode to fabric previous- ly attached to the ground. As between the personal repre- sentative and the heir it is a general rule, that whatever is 8 Rev. St. 1909, § 10.5; Musick v. Kansas City, S. & M. Uy. Co., 114 Mo. .309, 21 S. W. 491 ; Mitchell v. St. Louis, I. M. & S. Ry. Co., 12.3 Mo. App. .54.5, 101 S. W. 727. 6 9 Sims' Adm'r v. Kelsay, 75 Mo. 68. § 184 executor's right to assets 181 affixed to the freehold descends to the heir, as a part of the inheritance. The rule is generally upheld with rigor in favor of the heir, and against a claim to treat as a personal chattel anything which is affixed to the freehold. But the rule has been relaxed with respect to fixtures put up for the purpose of trade, or for ornament or domestic convenience; as a cider mill, tables, although fastened to the floor; iron ovens, clock cases, although fixed to the freehold by nails or otherwise ; and lamps, chandeliers, candelabra, sconces, brackets, gas fixtures and the various contrivances for lighting houses.''" Stoves are not generally fixtures, yet where a heavy stove was placed by the ancestor in the chimney having no fireplace, without legs, set on brick work, with a short funnel bricked around in the chimney, it was regarded as real estate.^ ^ A cistern standing on blocks in a cellar is a fixture.^" And pipes for conducting water through the aj^artments of a dwell- ing house and the bathing apparatus connected therewith, pass with the realty.^^ But hewed timbers, posts, and round logs, lying loosely upon land, though originally intended to be put into a building upon the land, are not fixtures and do not go to the heir.''* § 184. Same — As to Tenants, etc. — There are three things which go to constitute a fixture in a house (1) annexa- tion, (2) adaptation and (3) intent ; and in modern times the lat- ter two are more important than the other.''^ Many things erected by one who has but a life estate in land, or by a tenant for years, will not be deemed fixtures, which if erected by the owner in fee would be deemed such, and would pass to his heir.''^' The object and purpose of the annexation must be re- garded in all cases. A chattel fastened to a building merely 7 Rogers V. Crow, 40 Mo. 91. 9.3 Am. Dec. 299; Dounewald v. Turner Real-Estate Co., 44 Mo. App; H'yO. 71 Tuttle V. Robinson, 33 N. IT. 104. 72 Wall V. Hinds, 4 Gray (Mass.) 2m, 64 Am. Dec. 64. T 3 Cohen v. Kyler, 27 Mo. 122; Cooke v. McNeil, 49 Mo. App. 81; Davis V. Mugan. ;j6 Mo. App. 311. '■1 Woodward v. Rlanchard, 16 111. 4.30. 7 5 St. Louis Radiator Mfg. Co. v. Carroll, 72 Mo. App. 315; Prog- ress Press Brick & Machine Co. v. Gratiot Brick & Quarry Co., 1.j1 Mo. 501. 52 S. W. 401, 74 Am. St. Rep. 557; Union Cent. Life Ins. Co. V. Tillery. 152 Mo. 421, 54 S. W. 220, 75 Am. St. Rep. 4S0 ; Loan V. Gregg. 55 Mo. App. 5si. 76 Hunt V. Mullanphy, 1 Mo. 508, 14 Am. Dec. 300; Rogers v. Crow, 40 Mo. 91, 93 Am. Dec. 299; Tudor Iron Works v. llitt, 49 Mo. App. 472. 182 executor's right to assets § 184 for the more complete enjoyment and use of it as a chattel re- mains a chattel still, and is not a part of the freehold, although annexed to it, any more than a carpet which is attached to the tloor by nails to keep it stretched out is a part of it. All articles of furniture, movable in their nature, are not fixtures though attached by screws or nails. Such as hangings, pier glasses, chimney glasses, looking glasses, pictures, book cases, wardrobes, carpets and curtains. A mirror set in the wall, after the building was completed, so that its removal would not interfere with the wall, is not a fixture.'' There are some articles which are never corporally attached to the realty, but which are constructively annexed to the freehold, and pass to the heir, such as padlocks, keys, rings, etc., of the house. So a mill stone passes, although at the time of the conveyance it is severed from the mill and removed for a temporary purpose from its bed. And where the stones and irons of a grist mill were accidentally detached by a flood carrying away the main body of the mill, they were held to continue a part of the realty. Ties and rails laid down and fastened on a railroad bed for cars to pass over are not personal property unless made so by agreement, but if they are severed from the realty they become personal property.'^ So the wires belonging to an electrical plant and used as a part of its machinery, how- ever far extended from the lot or plant, are fixtures.' ** And a press brick machine when necessary to complete a manufac- turing establishment, may be a fixture and a part of the re- alty.^" A building erected by one man on the land of another is to be regarded as a fixture and a part of the realty; unless it was erected with the consent of the owner, or under an agreement or understanding that it might be removed at any time, in which case it is no part of the land, but the personal property of the person who built it.^^ 7 T Loan V. Gregg, 55 Mo. App. 581 ; Cooke v. McNeil, 49 Mo. App. 81. 7 8 Tudor Iron Works v. Hitt, 49 Mo. App. 472. 7 9 Southern Electrical Supply Co. v. Rolla Electric Light & Power Co., 75 Mo. App. 622 ; St. Louis Radiator Mfg. Co. v. Carroll, 72 Mo. App. 315. 8 Progress Press P>rick & Machine Co. v. Gratiot Brick & Quarry Co., 151 Mo. 501, 52 S. W. 401. 74 Am. St. Eep. 557. 81 Priestley v. Johnson, 67 Mo. 6.32; Hines v. Anient, 43 Mo. 298; Dietrick v. Murdock, 42 INIo. 279 ; Tudor Iron Works v. Hitt, 49 Mo. App. 472 ; Brown v. Baldwin, 121 Mo. 126, 25 S. W. 863. § 185 executob's right to assets 183 § 185. Same — Between a Tenant and His Landlord the old rule as to lixturcs is j^really relaxed. It is important to consider what the rights of a tenant in this respect are, for his personal representative will succeed to them. According to the common law, it was waste for the tenant to take down or remove anything affixed to the freehold, although he had put it up for his own use. The principle still prevails as to all fixtures that belong to the landlord, and were attached to the freehold when the tenant took possession, or were subsequently annexed by the landlord. As a general rule everything fixed to the land, either immediately as a house, or indirectly, as a window or door in the house, was considered as belonging to the land, because the things so fixed could not be enjoyed apart from the land to wiiich they were attached. But upon prin- ciples of general policy, a tenant, whether for life, for years, or at will, is permitted to carry away all such fixtures of a chattel nature, as he has himself erected upon the premises, for the purpose of ornament, domestic convenience, or to carry on trade, provided, the removal can be efifected without ma- terial injury to the freehold.^ ^ So it is now settled that a ten- ant may take away whatever he erects for the purpose of car- rying on trade, or for the better enjoyment of the premises, whether it be machinery or buildings, even though affixed to the soil or freehold.*^ The doctrine was first distinctly ap- plied in a case where a tenant for years, who was a soap-boiler, for the convenience of his trade put up vats and copper tables upon the leasehold premises. It has been applied in the case of a baker's oven, salt pans, carding machines, cider mills, and furnaces ; steam engines, copper stills for distilling ; stones for grinding bark, affixed to a bark mill ; and to the case of a ball room erected by the lessee of an inn, resting on stone posts, slightly imbedded in the soil, and removable without injury to the inheritance.®* It has been approved by the su- preme court of the United States, where Justice Story held, that the question whether a given article was capable of re- moval does not depend upon the form or size of the building, whether it has a brick foundation, is one or more stories high, or has a chimney ; but that the only question is, whether it 82 Lacey v. Giboney, 3G Mo. 320, SS Am. Dec. 14."> ; Graves v. Pierce, 53 Mo. 423. 83 Ro.cers V. Crow, 40 Mo. 01. 03 Am. Dee. 200: Bircher v. Parker, 40 Mo. llS; Donnewald v. Turner Keal-Kstate Co., 44 Mo. App. 350. 8 4 P.aUhvin v. Merrick, 1 :Mo. App. 2S1. 184 executor's eight to assets § 186 was designed for the purposes of trade.^^ It has been extend- ed to gardeners and nurserymen who are considered tradesmen, and may remove their green-houses and hot houses, with trees and shrubs planted for purposes of sale.^^ § 186. Same — Trade Fixtures and for Agriculture. — It seems to be settled in England that the privilege of removing fixtures erected for the purpose of trade, is not extended to the removal of fixtures erected for agricultural purposes. But Justice Story thinks the English doctrine is not applicable to the circumstances of this country, and seems to repudiate it.®^ In Massachusetts, the rule as to trade fixtures is extended to the agricultural tenant.^^ In New York, the contrary opinion is firmly maintained. So the question as to agricultural im- provements may be regarded as unsettled in this country. In a community whose paramount interest is the cultivation of the soil, as in this state, it is probable our courts will entertain and apply as liberal notions of policy to agricultural contri- vances as commercial communities have adopted with regard to trade. *** § 187. Same — Removal of Fixtures. — It is generally held that fixtures must be removed during the term, or before the tenant quits possession; otherwise the privilege of re- moval will be presumed to be abandoned, unless the tenant by agreement reserve the property in them and the right to remove them after the term has expired. ^^ Whatever fixtures the tenant would have a right to remove before the expiration of his lease, his personal representative may remove and treat as chattels.®^ But the representative must bear in mind that the privilege of removing fixtures, as against the landlord, erected by the deceased tenant during his tenancy, does not 86 Van Ness v. Pacard, 2 Pet. (U. S.) l.'^.T, 7 L. Ed. 374; Hubbell V. East Cambridge Five Cents Sav. Bank, 132 Mass. 447, 42 Am. Rep. 446. 86 Adams v. St. Louis & S. F. Ry. Co., 138 Mo. 242, 29 S. W. 836. 87 Van Ness v. Pacard, 2 Pet. (U. S.) 1.37, 7 L. Ed. 374. 8 8 Whiting V. Brastow, 4 Piclc. (Mass.) 310. 8 9 Lacey v. Giboney, 36 Mo. 320, 88 Am. Dec. 145; Esther v. Burke, 139 Mo. App. 267, 123 S. W. 72. Beckwith v. Boyce, 9 Mo. ,561; Finney v. Watkins, 13 Mo. 291; Lacey v. Giboney, 36 Mo. 320, 88 Am. Dec. 145; Bircher v. Parker, 43 Mo. 443 ; Donnewald v. Turner Real-Estate Co., 44 Mo. App. 350 ; Davis V. Mugan, 56 Mo. App. 311. »i McCracken v. Hall, 7 Ind. 30. §188 executor's eight to assets 185 authorize a similar removal by the executor or administrator of the owner of land as a.ijainst the heir or devisee."- Where a tenant parts with his title to the unexpired term, by an as- signment of his lease, the transfer carries with it the build- ings, fixtures and machinery he may have erected on the prem- ises. And an assignment, by way of mortgage, of a leasehold interest, would necessarily include all erections upon the land, unless it was apparent from the terms of the instrument, or from the nature of the erections, that such was not the inten- tion of the parties. So with a mortgagor generally ; he con- veys the land, by way of security, and whatever is attached to the land, to be habitually used and enjoyed with it, wliether for the purpose of trade and manufacture or not, goes with it as a part of the mortgage security.®^ And the right to levy upon and sell under execution, a trade fixture belonging to a tenant must be exercised during the term or while the tenant remains in possession."* A devise of land takes with it all fixtures in the same con- dition as it would have descended to the heir, and fixtures which the representative could claim against the heir he may claim against the devisee. § 188. As to Leases. — All tenancies for years, and lease- hold estates unexpired at the death of the tenant or lessee will belong to his personal representative. The length of the term of the lease does not aflfect its devolution, provided it be of certain duration, on death of the tenant."^ Thus, ninety- nine year leases and nine hundred and ninety-nine year leases are transmitted to the administrator, or executor, rather than to the heirs."*' Leasehold interests, where the term of the lease is for three years, or more, cannot be sold by the ad- ministrator or executor as personal proj^erty ; the provisions of the statutes relating to the sale of real estate applying to the disposition by the executor or administrator of such as- 92 Fisher v. Dixon (Kiig. H. of L.) 12 Clark & l-^in. 312. 93 Davis V. Mujitiii. 5G Mo. App. 311. 94 DonnowaUl v. Turner Real-Kstate Co., 44 Mo. Ai)p. 350. 95 Sutter V. Lackmann, 39 Mo. 91; Orchard v. Wrislit-Dalton-Bell- Anchor Store Co., 225 Mo. 414, 125 S. W. 48G, 20 Ann. Cas. 1072. 9c Orchard v. Wright-Dalton-Bell-Anchor Store Co., 225 Mo. 414, 125 S. W. 486. 20 Ann. Cas. 1072; Lenow v. Fones, 48 Ark. 557, 4 S. W. 5(>; Whitniire v. Wrlirlit, 22 S. C. 44G, 53 Am. Rep. 725; Schee V. Wiseniau, 79 Ind. 392; Mickey's Lessee v. Wintrode, 7 Ohio, 124, pt. 1. 186 executor's right to assets § 188 sets." Dower is assigned, in leasehold interests for a term of twenty years or more, as in real property.'^"^ It is not essential to the representative's right to the un- expired term of the lease that the executor, administrator or assigns of the decedent should be named in the contract. The personal representative must fulfill the contract or comply with the terms of the lease on the part of his decedent. He is chargeable with the payment of rent, due for the use of the term, so far as he has assets. If he enters upon the leased premises and sells or assigns the lease, he will be liable for rent which accrues after the assignment, only in his repre- sentative capacity. If he underlets, the occupancy of the un- der tenant is his occupation, and he is liable for rent. If the profits of the land are of less value than the rent, so that the lease hold estate will sell for nothing and there is a deficiency of assets, the representative may waive the lease, and surren- der the unexpired term to the landlord. And if there are as- sets to bear the yearly losses for some years, but not during the whole term, then it seems the representative must pay the rent as long as the assets will hold out, and must then waive the possession, giving notice to the landlord. If a lease be made for a term of years, upon condition that if the tenant shall assign his term without the consent of the landlord, it shall be lawful for the landlord to re-enter, the estate in the lease will nevertheless vest in the representative of the tenant, and this will be a breach of the condition, and in such case the representative is authorized to sell and assign it. If the executor is named in the condition or covenant, it is binding on him, and he cannot, in that case, sell or assign it without the consent of the landlord. It is provided by stat- ute that no tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or in- terest, or any part thereof, without the written assent of the landlord. ^'^ But a lease for a longer term than two years may be assigned, and if the landlord does not terminate the lease in case of an unauthorized assignment, the tenant, underten- ant, or assignee, will be liable for rent accruing after the as- 97 Orchard v. Wright-Dalton-Rell-Anchor Store Co., 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072. 9 8 Rev. St. 1909, § 345; Orchnrrl v. Wright-Daltoii-Bell-Anchor Store Co., 225 Mo. 414, 125 S. W. 4SG, 20 Anu. Cas. 1072. 9 9 Rev. St. 1909, § 7880. § 189 executor's right to assets 187 signment, and tlie landlord's lien may be enforced against the crop of the tenant or suh-tcnant.^"" § 189. Same — As to Rents. — Rent which became due to the estate after the death of the landlord goes to the heir and ' not to the personal representative, even though the rent is re- served in the lease to the landlord, his executors and adminis- trators. On the other hand, if the tenant makes an under- lease, reserving rent for himself, the rent accruing on his sub- tenancy after the death of the principal tenant, will go to his representative and not to his heirs ; and this, even where the reservation of rent in the sub-lease is to the tenant and his heirs. When no estate or reversion is left in the landlord and the rent is reserved, it will go to the personal representative and not to the heirs. If rent be reserved for years, and be severed from the reversion — that is, if the rent by devise or otherwise becomes payable to another person than the one who owns the land on which it is reserved — it will then go to the representative of him to whom the rent is reserved. If the owner sell or assign his estate or term or the rent thereafter to fall due, his alienee or assignee may recover the rent.^"^ Thus, if a man owning land in fee makes a lease for years, re- serving rent, and afterward devises the rent to another who dies, the representative of the latter, and not his heir, will take this rent. As rent which becomes due before the death of the landlord goes to his personal representative, and rent which becomes due after his death goes to the heir, and is not such a debt as the administrator is required to inventory and collect, he has nothing to do with it unless the probate court has ordered him to rent the land to pay the debts ; and then such order would not have a retrospective effect, but would apply to future rents accruing to the administrator under his contract of renting and would not include rents accruing after the death of the dece- dent and before the order was made.^°^ It may be important 100 Garroutte v. White. r>2 Mo. 237, 4 S. W. fiSl ; Glasner v. Fred- erick, 73 IMo. App. 424; Williams v. Bradon. G3 Mo. .\pp. 513; Ameri- can Cent. Ins. Co. v. Cluf'ai,'o & A. Ry. Co., 74 Mo. .\pp. 89. 101 Rev. St. 1009, § 7S99 ; Smith v. Aude, 46 Mo. App. G31 ; Brad- ford V. Tilly, G5 Mo. App. ISl ; Bonnell v. Back, 79 Mo. App. 496; Snyder v. Parker, 75 Mo. App. 529. 102 Bealey v. Blake's Adm'r, 70 Mo. App. 229; St. Louis Xat. Rank V. Field, 156 Mo. .306, 56 S. W. 1095; Grant v. Hathaway. 21.") Mo. 141. 114 S. W. 609, 15 Ann. Cas. 567; Meeks v. Clear Jack Min. Co., 141 Mo. App. 64S, 124 S. W. 1084. 188 executor's right to assets § 190 to know when rent is due. Although the hour of sunset is the last hour appointed by law for making demand or tender of rent, to enable a landlord to exact a forfeiture of the leased premises, yet rent is not due until midnight. To illustrate, suppose rent to be payable on the first day of March, and by the terms of the lease the landlord may re-enter for non-pay- ment; now, if the landlord designs to insist upon a forfeiture, he must make his demand at sunset; but if he dies after sun- set and before midnight of the first day of March, his heir and not his personal representative shall have the rent. But if, in such case, the rent be paid on that day, and then after its pay- ment and before midnight the landlord dies, such payment will be a good satisfaction against the heir, and the money will go to the representative.^"^ § 190. As to Stocks. — Shares in the capital stock of cor- porations and joint stock companies, whether banking, turn- pike, railroad, or other corporations, with the dividends, ac- crued thereon are a species of incorporeal intangible personal property, in the nature of things in action, and go to the per- sonal representative, as assets. ^°* The charters or by-laws of these corporations generally point out the mode in which the transfer in case of a change of title to shares of stock shall be noticed on the books of the company. The capital stock of a corporation, whether paid in or not, is a trust fund pledged to the payment of the debts of the concern ; ^°^ and in some cases the corporation has a lien on the stock for an indebtedness due to it from the holder.^*"^ Such stocks, when they come to the notice of the personal representative, should be taken in pos- session and be inventoried, appraised and sold as other prop- erty, subject to the lien or incumbrance, if any, or such lien might be discharged by order of the probate court, with other assets, and the stocks then be disposed of as circumstances re- quire. Where such stocks are not required to be sold for the payment of debts, and can be distributed among the proper 103 1 Williams, Ex'rs, 7-30 et seq. 104 Vanstone v. Goodwin, 42 Mo. App. 39; Watson v. Sidney F. Woody Printing Co., 56 Mo. App. 14.5. 105 Ramsey v. Tlionipson Mfg. Co., 116 Mo. 313, 22 S. W. 719; Missouri Lead Mining & Smelting Co. v. Reinhard, 114 Mo. 218, 21 S. W. 488, 35 Am. St. Rep. 746; Warniciv v. Baker, 42 Mo. App. 4.39 ; Farmers' Bank of Frankfort v. Gallaher, 43 Mo. App. 482. 100 Bank of Atchison County v. Durfee, 118 Mo. 431, 24 S. W. 13.3, 40 Am. St. Rep. .396; Brinkerlioff-Farriss Trust & Savings Co. v. Home Lumber Co., 118 Mo. 447, 24 S. W. 129. § 192 executor's bight to assets 189 distributees, it would be as well perbaps to transfer them to tbe heirs without sale. The bonds of states, cities and coun- ties, and oth.cr corporations, municipal or private, are often de- scribed commercially as stocks. These are generally made pay- able to bearer, pass by delivery, and vest in the personal rep- resentative, as other things in action. ^°^ § 191. As to Annuities. — An annuity is a yearly pay- ment of a certain sum of money granted to another in fee, for life, or for years, not charging land, but the person of the grantor only."'* Annuities are generally regarded as mere personalty, and go to the personal representative of the an- nuitant, where it extends beyond his own life. An annuity, however, partakes so much of the nature of realty that when granted with words of inheritance, but not otherwise, it is descendible and goes to the heir; subject, however, to the payment of debts. Such arrears only are generally recover- able by the personal representative, as accrued prior to the last day of payment which happened before the annuitant's death. An annuity, however, granted for maintenance to in- fants, or married women living separate from their husbands, will be computed and apportioned up to the day of their deaths, and their representative may recover accordingly. This excep- tion arises, it is said from necessity ; for otherwise such per- sons could not obtain necessaries. The present value of an annuity may be calculated in ac- cordance with the table in section 8499, R. S. Mo. 1909, which gives the present value, on the basis of six per cent, interest, of an annuity of one dollar, according to the Carlisle tables of mortality. One whose claim is secured by bond and deed of trust cannot be compelled to enforce his lien before pro- ceeding against the general estate of the obligor by proving the value of his annuity as a demand not yet due.^°" x\n- nuitants cannot create a charge upon the trust fund so as to impair the principal from which it springs.^ ^° § 192. As to Property Held in Trust.— The title of the executor or administrator in the case of personal property or of the heirs in the case of real estate is that of the deceased. Hence, where the absolute ownership of personal or of real property did not vest in the deceased, such property does not constitute assets for distribution in the hands of either execu- 107 2 Rodfield on Wills. IGS. io« 1 Williams, Ex'rs, 722. 108 Schmieding v. Doellner, 13 Mo. App. 228. 110 Post V. Cavender, 12 Mo. App. ii<). 190 executor's right to assets § 192 tor, administrator, or heirs/^^ Where the decedent is the trustee in an express trust, or has entered into a contract in his own name for the benefit of another, or has taken personal or r^al property in his own name, but in trust for the use or benefit of another, his title and ownership descends in the case of personal property to his administrator or executor and in the case of real property to the heirs of decedent. ^^^ By stat- ute in Missouri it is provided that in the case of death of the trustee of an express trust the beneficiary in such trust or personal representative or heirs of the deceased trustee may apply to the circuit court, and upon a proper showing- of fact as to the existence of the trust and the death of the trustee obtain the appointment of a successor, who may be the sherifif of the county in which the suit is brought or some other per- son suitable to act in the capacity of trustee.^ ^^ The fundamental principles of our jurisprudence demand that not for one moment shall the legal title in real or per- sonal property be "in the air," but must on the death of the owner vest immediately in some one. In case of a trust, where the terms of the trust do not expressly provide for its devolu- tion on the death of the trustee, the interim between such death and the appointment of the succeeding trustee, as au- thorized by the statute, is not vacant, but is occupied by the personal representative of the deceased trustee where the trust relates to personal property, and by the heirs of the de- ceased trustee where it relates to real property. The trust is not extinguished by the death of the trustee, although its devolution is not provided for in the instrument creating it. § 193. As to Patents. — When a patent for an invention or discovery is granted, the law impresses on it all the qual- ities and characteristics of property, for the specified period ■ — seventeen years; and has enabled the inventor to hold and deal with it the same as with any other description of property belonging to him, and on his death it passes, with the rest of his personal estate, to his executor or adminis- trator, and becomes part of the assets. ^^* When an inven- 111 Hook V. Dyer, 47 Mo. 214. 112 State ex rel. Boughton v. Tubb, 22 Mo. App. 91; Gimbel v. Peguers, 62 Mo. 240; Ewing v. Shannahan, 113 Mo. 188, 20 S. W. lOO'i; Newman v. Newman, 152 Mo. 398, 54 S. W. 19; Reyburn v. Mitchell, 106 Mo. 308, 16 S. W. 592, 27 Am. St. Rep. 350. 113 Rev. St. 1909, §§ 11919, 11920. 114 Rev. St. U. S. 1874, pp. 953, 954. § 194 executor's right to assets 101 tor has died before making application for a patent, the law provides that the right of applying- for and obtaining a pat- ent shall devolve on his executor or administrator, in trust for his heirs or devisees."^ The same statute permits an extension of a patent beyond the original period of its limi- tation on the application of the patentee, in the mode pre- scribed. In the case of the death of the patentee who in his lifetime disposed of his entire interest in the right granted by the letters, it was held that the right of extension annex- ed to the benefit of the administrator only as the represen- tative of the deceased."*' The persons lawfully using any such right a't the expiration of the first term are lawfully entitled to continue such use. Where, by the contract, one party sold and conveyed to another the exclusive right to sell, rent and use the said regulator, such right at once vest- ed in the purchaser.^^^ An assignment of a patent right need not be recorded to give it validity, and where the un- recorded assignment is destroyed with a view to reinvest the title in the assignor it will have that efifect."^ § 194. As to Copyright. — The right of one who has com- posed a book, map, chart, or musical composition, or has engraved or designed any other work of art or skill, pro- tected by the statute, becomes his personal property upon his comi)lying with the act of Congress concerning copy- rights. For the period of twenty-eight years it belongs sole- ly to him, his executors, administrators or assigns, and they alone have the right to print, reprint, publish and sell the composition of the author. The extension of fourteen years additional in case of the author's death is not the right of the personal representative, but of the widow or children of the deceased."'' The owner has the exclusive right to sell his books or production in any manner and anywhere in the United States, and he may transfer this right to an- other for the whole or a part of the country, or grant a li- cense to sell and retain the legal title to the copyright ; ^-<> and damages for an infringement upon this copyright, upon 115 Id. p. 955. lie Wilson V. Rousseau, 4 How. (U. S.) G4G, 11 L. Ed. 1141. 117 Ford V. Dyer, 148 Mo. 528, 49 S. W. 1091; Sone v. Palmer, 28 Mo. 5:59. 118 Winfrey v. Gallatin, 72 Mo. App. 191. 1 1 9 Rev. St. U. S. 1874, p. 96G. 120 Davis V. Vories, 141 Mo. 234, 42 S. W. 707. 192 executor's right to assets § 195 the death of the owner, might be recovered by the adminis- trator.^-i § 195. As to Policies of Insurance, — Where personal property is insured the policy passes to the representative. Where the insurance money secured by a policy is made payable to the insured, his executors, administrators or as- signs, and the insurance upon houses and buildings in fee which afterward descend to the heir, and are burnt during the life of the policy, the personal representative of the in- sured, and not the heir, will be entitled to receive the pro- ceeds of the policy. In a case of this kind, it was contended that the representative held the proceeds of the policy as a trustee for the heir. But the Lord Chancellor declared that it was utterly impossible to make the representative a trus- tee,^^^ If, however, by the act of the insured, or the party entitled to the benefit of the proceeds of the policy, those proceeds should become clothed with the character of real estate, or with a trust, the party entitled to the real estate, as heir or devisee, will become entitled to them in prefer- ence to those who may claim them as personalty.^^^ Losses occurring before the death of the insured must be paid to the representative, and not to the heir. And where the de- ceased took out a five-year policy on his dwelling house, giv- ing his note for the premiums conditioned that if the note was not paid when due the policy should be void until it was paid, and the insured died a few months before the note be- came due, and by request of the heirs there was an indorse- ment on the policy that the property belonged to them, and the loss, if any, was payable to them, and the loss occurred a few days after the note became due. The note was not paid by, nor demanded of the administrator or presented for allowance. It was held that the contract being personal with the assured, his executors etc., the executor was the proper plaintiff in an action upon the policy, but he was a mere trustee as distinguished from his executorship ; that the realty descended to the heirs and the loss was the loss of the heirs and not of the estate ; that it was the duty of the heirs to have paid the note at maturity, and not having 121 Black V. Henry G. Allen Co. (C. C.) 42 Fed. 618, 9 L. R. A. 433 ; Id., 56 Fed. 7G4 ; Baldwin v. Baird (C. C.) 25 Fed. 293. 122 Phillips on Ins. § 104. 123 Ellis on Ins. 84. § 196 executob's right to assets 193 done so, the loss occurring- while they were yet in default, the company was not liable. ^-^ If the decedent held a policy of insurance on the life of another, it will vest in his personal representative, and not in his heir.^-° But if the policy be payable to the party in- sured or to his heirs or representatives, and it appears to have been the intention of the party to make provisions for his family in the event of his death, the money will go to the heirs, and not to the representatives as ordinary as- sets. ^^® The general rule is that the beneficiaries in the poli- cy are entitled to the insurance money,^-^ The insurance in benevolent or assessment companies is by statute exempt from the payment of debts or liabilities of the certificate holder or beneficiary or any person having a right to the fund thereunder.^-® Immediately on the death of a member the beneficiary fund vests and becomes a fixed interest in the person entitled under the certificate, but if the benefi- ciary is incapacitated to take at the death of the member, the fund should go where the by-law of the society contem- plated it should.^'"* If the beneficiary dies before receiving payment, the fund does not on that account lose the exemption from the pay- ment of debts, but retains that quality .^^^ But the adminis- trator of the estate of such beneficiary is the only party en- titled to collect such fund, unless the probate court has dis- pensed with administration, but he would hold the funds, when collected by him, in trust for ^he persons entitled to them, and not for the benefit of creditors. ^^^ § 196. As to Apprentices. — On the death of the master the apprentice is discharged, and the representative of the deceased has no claim, upon the services of the apprentice. But it is said the estate of the master is chargeable with the necessary maintenance of the infant apprentice. Articles of apprenticeship are not assignable. Such is the facility for 124 Saunor v. Phoenix Ins. Co. of Brooklyn, 41 Mo. App. 4S0. 125 In re Ulrici's Estate, 145 Mo. App. 463, 122 S. W. 761. 126 Loos V. John Hancock Mut. Life Ins. Co., 41 Mo. 53S. 127 Bli.ss on Life Ins. § 317 et seq. 128 Rev. St. 1909, § 7120. 128 Hofman v. Grand Lodge Brotherhood Locomotive Firemen, 73 Mo. App. 47 ; Lister v. Lister, 73 Mo. App. 99. 130 Grand Lodge A. O. U. W. v. Dister, 77 Mo. App. 608. 131 Grand Lodge A. O. U. W. v. Dister, 77 Mo. App. 608. Kel.Mo.P.G.— 13 194 executor's right to assets § 197 finding employment in this country, and such the independ- ent temper of its youth, that no trouble with this question is likely to occur. § 197. As to Partnership Effects. — Debts due to and properly owned by two or more persons jointly or by a part- nership continue under the control and under the possession of the surviving partner, as he has the prior right to admin- ister on the partnership estate. It is the duty of the sur- viving partner to collect the assets and wind up the busi- ness of the firm, a duty the common law, as well as the stat- utes, imposes upon him as incident to the contract of part- nership. At common law no remuneration was promised or implied for the performance of this duty.^'- The right of the surviving partner to take possession of the partnership assets and wind up the concern without giving bond is fully recognized in this state, but if he does not give bond and proceed to administer under the statute, the administrator of the deceased partner may do so, and take charge of the partnership effects and administer the partnership estate.^' "' On the death of a surviving partner, his administrator stands in the same position as to the partnership eftects which was occupied by the surviving partner in his lifetime. He has the legal title to the partnership effects, succeedhig to it by virtue of his trust as administrator of the surviving partner; yet they are assets of the firm and not of his intes- tate, and should be inventoried as the gross amount of the partnership estate as shown by the appraisal. ^^'^ The mode of settling partnership estates is now regulated by stat- ute.^=*^ § 198. As to Goods Mortgaged. — By the common law a mortgage transferred the legal title, leaving the mortgagor only an equity of redemption in the land or property mort- gaged, but the modern doctrine is that the mortgage is sim- ply a security and the mortgagor is the owner to all intents subject to the rights of the mortgagee, so that in case of in- 132 Ames V. Downing, 1 Bradf. Hxn: (N. Y.) 321; 3 Kent, p. 71, § (r.). i33Bredo\v v. Mutual Sav. Inst, 28 Mo. 181; Hargadine v. Gib- bons, 114 Mo. 561, 21 S. W. 726; Crook v. Tull, 111 Mo. 2,S3, 20 S. W. 8. 134 Thomson v. Thomson, 1 Bradf. Sur. (N. Y.) 24; Rev. St. 1909, 8 90. 13 5 Hev. St. 1009, §§ 88-99; Scudder v. Ames, 142 Mo. 187, 43 S. W. 6.^9. § 198 executor's right to assets 195 jury to the freeholder or to the goods mortgaged the mort- gagor would sustain the loss and he would be entitled to compensation for such injury, subject to the right of the mortgagee. ^^" It is claimed that upon breach of the condi- tion in a chattel mortgage the mortgagee not only has the right to take possession of the goods, but becomes the legal owner of them, but this ownership to be in harmony with the right of a mortgagee of real estate in the property mortgag- ed is only for the purpose of obtaining satisfaction of the debt, and after that has been accomplished what remains of the property or its proceeds should belong to the mortga- gor.^^' The property should be so described that a person could from the description pick out and identify the articles, and the location given of the article or goods may be an im- portant aid in the description. ^^^ After acquired property may be included in a mortgage and where new goods are intentionally intermingled with the old stock covered by a mortgage without the assent of the mortgagee, unless they can be distinguished and separated the mortgagee is entitled to entire stock as against an attaching creditor.^^^ A mort- gage of chattels not in existence, such as an unplanted croj), gives only an equitable lien, and when the property comes into existence the lien will attach, which must be enforced by a resort to equity.^*" While the mortgagor is in posses- sion of the property with the right to use it, he may have necessary repairs, and the artisan making the repairs would have a lien therefor which would have preference over the mortgage. "^^^ After condition broken by default in failing to pay the debt, or for other cause mentioned in the mort- gage, the mortgagee may take possession of the property and dispose of it for the payment of his dcbt.^*- And if the 13C Matthews v. Missouri Pac. liy. Co., 142 Mo. G45, 44 S. W. 802; Dickerson v. Bridges, 147 ISIo. 235, 48 S. W. 825. 137 straub x. Siuipson, 74 Mo. App. 230; Arkansas City Bank v. Cassidy, 71 Mo. App. 180; Ililsert v. Levin, 72 Mo. App. 48. 13b J. H. Nortli Furniture & Carpet Co. v. Davis, 76 Mo. App. 512; Chrisman-Sawyer Banking: Co. v. Strahorn-Hutton-Evans Commis- sion Co., 80 Mo. App. 438 ; Vermont Marble Co. v. Ragsdale, 74 Mo. App. 42; Evans-Snyder-Buell Co. v. Turner. 143 Mo. 638, 45 S. W. 654 ; IMeyer Bros. Druir Co. v. Self. 77 Mo. App. 284. 139 Wyeth Hardware Co. v. Beard, 79 Mo. App. 189. 140 Littlefield v. Lemley, 75 Mo. App. 511. 141 Kirtley v. Jlorris, 43 Mo. App. 144; Miller v. Crabbe, 66 Mo. App. 6(;0. 142 Fahy v. Gordon. 133 Mo. 414, 34 S. W. SSI ; State ex rel. Jones 196 executor's right to assets § 199 debt does not exceed one hundred dollars the mortgagee or his personal representative may sell the property upon giv- ing proper notice/*^ or if the debt amounts to fifty dollars or more the mortgage may be foreclosed in the circuit court.^** These provisions of the statute should be consid- ered a part of the mortgage. ^^"^ Chattels mortgaged, or pledged by the decedent, and redeemed by his representa- tive, will be assets for so much as they are w^orth beyond the sum paid for their redemption. ^''^ If the representative redeem the goods mortgaged or pledged, with his own mon- ey, he must, in general, be reimbursed.-^*^ § 199. Separate Property of the Wife. — The oft repeated rule of the common law is that marriage is an absolute gift to the husband of all the personal estate of the wife which she had at the time of the marriage, or which accrues to her in her own right, during coverture, and upon his death it will vest in his personal representative. At common law her property may be secured to her separate use by means of a marriage settlement, made with the consent of the hus- band, which places it in the hands of a trustee. Indeed it does not seem essential that there should be a trustee, for in cases where her property is secured to her separate use, by an ante-nuptial contract without the intervention of a trustee, courts of equity will uphold and protect her right to it, and especially, where the husband allows the wife to keep her property separate from the general mass of his own. And where the wife has pin-money, or a separate maintenance settled upon her, and by good management saves money out of it, she will hold it free from the claims of her husband's creditors or representatives. So, if the wife, in the absence of her husband, carry on trade and sup- port herself and children, the capital being furnished by her friends, or her own industry or means, she will hold the avails of her business to her separate use. It seems to be settled, that if the husband, until his death, suffer the wife V. White, 70 Mo. App. 1; State, to Use of St. Louis Brewing Ass'n, V. Murphy, 04 Mo. Ai)p. 6.", ; Straub v. Simpson, 74 Mo. App. 230. 143 Rev. St. 1900, § 2840. 1*4 Kev. St. 1909, § 2S2.S. 145 Cravens v. New York Life Ins. Co., 148 Mo. .5^.3, 50 S. W. .519, 5.3 L. R. A. .30.5, 71 Am. St. Rep. 628; State ex rel. O'P.riant v. IveuUuk & W. R. Co., 1.53 Mo. 157. 54 S. W. 559, 77 Am. St. Rep. 704. 140 Tlionipson v. DoUiver, 132 Mass. 103. 147 Glaholm v. Rouutree, 6 Q. B. (Div.) 710. § 200 executor's right to assets 197 to maintain her separate estate and so treat it himself, it must be so regarded after his death, and his personal repre- sentative is not called upon to notice it in the settlement of the estate. ^*^ An ante-nuptial settlement of money, jewels, furniture or other property made by the husband out of his own property upon the wife to her own separate use, will be valid, unless fraudulent, as to creditors. So a post-nuptial settlement of property by the husband upon the wife will also be valid, unless fraudulent as to creditors, and bona fide purchasers. But when the settlement upon the wife by the husband is made upon some valid and distinct considera- tion, it will not be held fraudulent as to creditors. The character of her property, whether it be her separate estate or not, may be determined by the deed or marriage settle- ment or contract.-^*^ Gifts by the husband to the wife by way of pin-money, that is such profits as the wife may de- rive from the sale of butter, eggs, poultry, pigs, fruit, and the like, or even pin-money given to her to purchase cloth- ing, or ornament, or for her separate expenditure, becomes her exclusive property and the representative of the hus- band has no claim upon it, in the settlement of the estate. The paraphernalia of the wife — her wearing apparel, jewelry and ornaments — does not go to the personal representative of the husband, nor is it liable to the claims of his creditors. The policy of our law has been to restrict rather than to en- large the rights of the husband in the property of the wife, both real and personal. ^^° Her right to the possession, in- come and control of her separate estate does not depend on her living with her husband, nor whether she is faithful to her marital obligations. ^^^ The rules above stated are now largely a matter of historical interest alone, as they have been rendered obsolete by statute through the enactment of the so-called Married Women's Acts in nearly every state in the Union. § 200. Same. — In Missouri, the wife is entitled to the rents, issues and products of her real estate, and all moneys and obligations arising from the sale thereof.^'^^ And all real estate and personal property, including rights in action, 148 Couiihlin V. Kyan, 43 Mo. 99. 97 Am. Dec. 375. i^oKlenke v. Koeltze, 75 Mo. 239. iBo Martin v. Trail. 142 Mo. 85, 43 S. W. 655. 151 Woodward v. Woodward, 148 Mo. 241, 49 S. W. 1001. 152 Rev. St. 1909, § 8308. 198 executor's right to assets § 200 belonging- to her at her marriage, or which have come to her during coverture by gift, bequest or inheritance, or by pur- chase with her separate means or property, or due to her as wages for her separate labor, or growing out of any vio- lation of her personal rights, together with all increase, in- come and profits thereof, are her separate estate and are un- der her sole control, although used and in the possession of the husband, unless she gives him full authority in writing to sell, incumber or dispose of it. He has no right in her property acquired since the laws of 1875 went into effect, and the indorsement of her name upon a note does not transfer it to her husband; it is not a sufficient writing.^^^ But such property is liable for her debts contracted before marriage and for any debts or liability created for the bene- fit of herself or family.^^* So where property is secured to her separate use by ante-nuptial contract, or marriage settle- ment ; ^^= or where she is permitted to carry on business on her sole and separate account, ^^"^ the means involved are her separate property. And a note taken in the name of the wife for property of the husband is prima facie a gift to her and becomes her separate property.^" Her separate estate does not go to the husband at her death, nor to his adminis- trator at his death. ^ = ^ But it passes to her administrator, and is subject to the laws of distribution among the heirs and creditors.^ ^^ He has no right to interfere with the rents and profits of her separate estate.^''" Property held by her in another state as her separate property continues to be such after it is brought into this state.'"^ But if he is in 153 Winn V. Riley, 151 Mo. 61, 52 S. W. 27, 74 Am. St. Rep. 517; Hurt V. Cook, 151 Mo. 41G, 52 S. W. 39G. 154 Rev. St. 1909, § 8.309; Woodward v. Woodward, 148 Mo. 241, 49 S. W. 1001; Megraw v. Woods, 93 Mo. App. G47, 67 S. W. 709; Gabriel v. Mullen, 111 Mo. 119, 19 S. W. 1099. 155 Overall v. Ellis, 38 Mo. 209; Klenke v. Koeltze, 75 Mo. 239. i56Coughlin V. Ryan, 43 Mo. 99, 97 Am. Dec, 375; Roberts v. Walker, 101 Mo. 597, 14 S. W. 631. 157 Richardson v. Lowry, 67 Mo. 411; Terry v. Wilson, 63 Mo. 493. 158 Rev. St. 1909, § 8.309; Benne v. Scbuecko, 100 Mo. 250, 13 S. W. 82 ; Leete v. State Bank of St. Louis, 115 Mo. 184, 21 S. W. 788. 159 Locke V. Mcl'herson, 163 Mo. 493, 63 S. W. 726, 52 L. R. A. 420, 85 Am. St. Rep. 546. 160 Reed V. Painter, 145 Mo. .341, 46 S. W. 1089. ici Rice V. Shipley, 159 Mo. 399, GO S. W. 740; McClain v. Abshire, 72 Mo. App. 390. § 201 executor's right to assets 199 possession of lier land, not her sci)arate estate, he would be entitled to the rents. ^"- A policy of life insurance expressed to be for the benefit of a married woman inures to her separate use and benefit free from all claims of representatives, creditors, or any oth- er persons. A secret settlement made by a woman a few days before her marriaije, and in contemplation of the event, was held to be fraudulent and void as against the hus- band. ^^^ § 201. When the Wife Survives. — Property falling un- der the description of choses in action of the wife, are debts owing to her on bond, bill or note or otherwise, arrears for rent, legacies, trust funds, residuary personal estate, money in the funds, and other property recoverable by action or suit; also all stocks or shares in joint stock companies; in short all personal estate not in actual possession.^"* The wife's choses in action do not become the property of the husband by reason of the marriage unless he reduce them into possession during coverture with her written assent; and if the wife survives him she will be entitled to all her choses in action which he has not so reduced to possession. And the law is the same with respect to her choses in action whether they come to her before or after the marriage. Constructive possession or a mere intention by the hus- band to reduce the wife's choses in action to possession is insufficient to defeat her claim to them in the case of her surviving him. There must be some decisive and unequivo- cal act on the part of the husband which divests the right of the wife and makes his right absolute ; such as recover- ing judgment in his own name, or issuing an execution on a judgment recovered by him and his wife, or by recovering the money, or obtaining a decree in equity for the payment of the money to him, or by assigning them for a valuable consideration or in payment of his debts, or giving an order to a third person for the money, etc. Such is the common law, but the rule is somewhat changed by statute. ^'^^ The husband can reduce his wife's personalty to possession only by procuring her written assent thereto.^"'' This statute 162 Smith V. White. 1(>5 Mo. SiX), Go S. W. lOm. 103 Linlcer v. Smith, 4 Wash. (C. C.) 224, Fed. Cas. No. 8,373. 164 1 Williams. Kxrs, 755: 2 Kedf. Wills, 170. 165 Ante, § 210; Kev. St. 1909, § 8309. 166 Hart V. Leete. 104 Mo. 315, 15 S. W. 97G; McGuire v. Alien, lOS Mo. 403, 18 S. W. 282. 200 executor's right to assets § 201 does not apply to marriages existing at the date of its pas- sage, nor to rights accrued thereunder.^^" If the husband has converted her separate personal property to his own u.-e without her written assent, she can recover the amount from his administrator, or have it allowed as a demand against his estate in the probate court. ^*^^ On the death of the husband, the right to property given to the wife by law is absolute, and on her death vests in her representatives, free from the demands of her husband's creditors or representatives.^'''* It has l:»een held in Missouri that a right on the part of the wife to bring up her children in the Catholic faith arising out of an ante-nuptial contract does not survive to the personal representative of the de- ceased wife, as it is not a property right.^^** § 202. When the Husband Survives. — At common law the surviving husband was entitled to all rights of the wife, as well in action as in possession. ^^^ But in many of the states and in this state, the wife's personal property upon her decease during the life of the husband goes to her heirs under the law of descents and distribution.^'- The husband may administer on her estate, but he does it for the benefit of her creditors and distributees. If he obtains a divorce on account of her fault even, he is not entitled to any interest in her estate by curtesy or otherwise,^" although the stat- ute expressly provides that when the wife procures the di- vorce for the fault or misconduct of the husband she is still entitled to dower in his estate.^^* i67Leete v. State Bank of St. Louis, 11.5 Mo. 184, 21 S. W. 7S8; Clay V. Mayr, 144 Mo. 376, 46 S. W. 157 ; Bartlett v. Ball, 142 Mo. 28, 43 S. W. 783; Winn v. liiley. 151 Mo. 61, 52 S. W. 27, 74 Am. St. Rep. 517 ; Hurt v. Cook, 151 Mo. 416, 52 S. W. 396. lesWinn v. Riley, 151 Mo. 61, 52 S. W. 27, 74 Am. St. Rep. 517; Church V. Church, 73 Mo. App. 421; Riley v. Vaughn, 116 Mo. 169, 22 S. W. 707, 38 Am. St. Rep. 586. ICO Hastings v. Myer's Adm'r, 21 Mo. 519. 170 Brewer v. Cary, 148 Mo. App. 193, 127 S. W. 685. 171 Stewart v. Stewart, 7 Johns. Ch. (N. Y.) 229. 172 Curry v. Fulkinson's Ex'rs, 14 Ohio, 100; Humphrey v. Kasson, 26 Vt. 765; Coughlin v. Ryan, 43 Mo. 99, 97 Am. Dec. 375; Locke V. McBherson, 1&3 Mo. 493, 63 S. W. 726, 52 L. R. A. 420, 85 Am. St. Rep. 546. 173 Doyle V. Rolwing, 165 Mo. 231, 65 S. W. 315, 55 L. R. A. 332, 88 Am. St. Rep. 416. 17 4 Rev. St 1909, § 359. § 203 executor's right to assets 201 § 203. Donatio Mortis Causa. — There is another species of interest in the property of the decedent, which vests nei- ther in the personal representative, nor in his widow, nor in his heir. This is called a donatio mortis causa, and is de- fined to be a gift made in view of the donor's death; condi- tioned to take effect only in the event of his death by a ])res- ent disorder; and delivered to the person who is the subject of the donation. ^^'^ In order to sustain a gift of this nature three essential attributes must concur. 1. The gift must be made in view of approaching death, in peril of death, or it will not be supported. When it ap- pears that the donation was made whilst the donor was ill, and only a few days or weeks before his death, it will be presumed that the gift was made in contemplation of death, and in the donor's last sickness. ^^^ 2. Although it is an essential incident that the donation should be subject to the condition that if the donor live it shall be returned to him, yet this condition need not be ex- pressed; it n^ay be implied. The gift being made in con- templation of death, there is, it would seem, an implied con- dition that it shall be held only on the happening of that event. It is, however, a question of fact, whether all the circumstances attending the transaction being considered, it was conditional or unconditional ; if the latter, it is not a donatio mortis causa.^'^^ 3. The general rule is, that to sustain the gift there must be an actual delivery of the thing to the donee himself, or to some other person for his use. A delivery to the wife of the donor, for the use of a third person is sufficient.^'^* The possession must be transferred in point of fact, but whether the delivery be by the hand of the donor, or only by his di- rection, is not material. A delivery to one as agent for the giver is not sufticient.^'^® So where the donor had written upon sundry parcels the names of the persons for whom 175 1 Williams, Ex'rs, 686; Keyl v. Westerhaus, 42 Mo. App. 49; Brandon v. Dawson, 51 Mo. App. 237 : Gartside v. Pahlman, 45 Mo. Apj). 160 ; Tye v. Tye, 8S Mo. App. 330. 176 Foley V. Harrison, 233 Mo. 460, 136 S. W. 354. 177 Foley V. Harrison, 233 Mo. 460. 13G S. W. 354. 178 Bloomer v. Bloomer, 2 Bradf. Sur. (N. T.) 339: Dunn v. German- American Bank, 109 Mo. 90, 18 S. W. 1139; Tygard v. McComb, 54 Mo. Ajtp. 85. i7»Godard v. Conrad, 125 Mo. App, 165, 101 S. W. IIOS. 202 executor's right to assets § 203 the}' were intended, and requested his son to see the parcels delivered ; as there was no actual delivery, it was held not a valid gift. So where A. had money in a bank on deposit, and on his death-bed drew three checks for $1,000 each in favor of certain three of his children, and handed them to F., saying: "If I die, deliver these checks to the persons in whose favor they are drawn ; but if I get well, hand them back to me." A. died soon afterward ; held that there was no delivery of the checks to the donees; that F. was the agent of the donor, and not of the donees, and that the gift failed for want of delivery. ^^^ So when the delivery is to the donee as a bailee. ^^^ When the nature of the thing will not admit of a corpo- real delivery, the gift will pass by a delivery of the means of coming at the possession, or making use of a thing given. Thus the delivery of the key of a trunk is a delivery of the trunk and its contents, and the delivery of a key to a store or warehouse in which goods are kept is a delivery of the goods, etc. The true question is, has the donor parted with his dominion over the property? Such a gift does not re- quire the consent of the personal representative to give it effect. It is liable, however, to the debts of the testator up- on deficiency of assets. A gift of this nature is revocable at the option of the donor, and without the consent of the donee, whether the donor recovers or not. But a will does not revoke it, because a will does not speak until the testa- tor's death, and at that moment the gift, from its very na- ture, has become absolute.^^- Property conveyed to the wife, but paid for by the husband, is prima facie a gift from him to her,^*^ and so is a note made payable to her by his direction. And gifts from husband to wife will be upheld 180 Walter v. Ford, 74 Mo. 195, 41 Am. Rep. 312; Dunn v. German- American Bank, 109 Mo. 90, IS S. W. 1139. i^iMcCord's Adm'r v. McCord, 77 Mo. IGG, 46 Am. Rep. 9; City of Kansas v. Hannibal & St. J. R. Co., 77 Mo. ISO; Tygard v. Mc- Comb, 54 Mo. App. 85; Tomlinson v. Ellison, 104 Mo. 105, IG S. \V. 201 ; Brandon v. Dawson, 51 Mo. App. 237 ; Bieber's Adm'r v. Boeck- mann. 70 Mo. App. 503; Gartside v. Pablman. 45 Mo. App. IGO. 182 Mercliant v. Merchant, 2 Bradf. Sur. (N. Y.) 432; Foley v. Har- rison, 233 Mo. 460, 136 «. W. 354. 183 Pitkin V. Mott, 56 Mo. App. 401; First Nat. Bank of Ft. Scott V. Simpson, 152 Mo. 6.38, 54 S. W. 50G; Bieber's Adm'r v. Boeck- maun, 70 Mo. App. 503. § 203 executor's eight to assets 203 and enforced in equity where all the necessary conditions to their validity have been performed.^** Where a gift is com- plete the failure of the donee to do what the donor expected to induce him to do by the gift would not defeat the gift.^^^ Neither does a will made afterward and bequeathing all the donor's proi)erty to anolher.^^^ 184 Thomas v. Tlioiiias, 107 Mo. 4r,0, 18 S. W. 27. 185 Blatz V. Lester, 'A Mo. App. 28:',. 188 Hoehn v. Struttmann, 71 Mo. App. 399. 204 INVENTOBY AND APPRAISEMENT § 204 CHAPTER XVII OF THE INVENTORY AND APPRAISEMENT § 204. The inventory — When and how m.ide. 205. Same — Certificate of witnesses. 200. An inventory is a list, etc. 207. Same — To include debts and other claims. 20S. Same — Property allowed the widow. 209. The appraisement — When and how made. 210. Additional inventory and appraisement. 211. Allowance to widow. 212. Same — Supplying deficiency. 213. Allowance to minor children and widower. 214. Articles taken by widow to be listed. § 204. The Inventory— When and How Made. — At com- mon law an executor derived title from the will, and could do all the acts incident to the office, except sue, before tak- ing out letters, but an administrator derived title from the appointment of the court, and could not dispose of the as- sets before that time, but his appointment would by fic- tion relate back and validate acts done in the interest of the estate and prevent injustice. The true theory is that at a man's death his property is subject to administration under the law, and whatever right or title the personal rep- resentative has to it, is simply as a trustee for creditors and distributees, and not for his own advantage, and there- fore his title is dependent upon his qualification as execu- tor or administrator.^ After duly qualifying, the executor or administrator may perform certain acts necessary for the preservation or protection of the property of the estate without an order of court, ^ and he or any other person might do the same thing, before letters have been granted, without incurring liability therefor as a wrongdoer, but in all such cases the person so interfering does so at his peril, and will be held to a strict accountability. Immediately after the grant of letters the executor or administrator must collect and take into possession the goods, chattels, money, books, papers and evidences of debt, or of the title to any 1 Stagg V. Green, 47 Mo. 500 ; McCracken v. McCaslin, 50 Mo. App. 85 ; McPike v. McPike, 111 Mo. 216, 20 S. W. 12. ^ Rev. St. 1909, § 109 ; Powell v. Powell, 23 Mo. App. 365 ; Mer- ritfs Estate v. :Merritt, 62 Mo. 150; Bambrick v. Webster Groves Presbyterian Church Ass'n, 53 Mo. App. 225. § 204 INVENTORY AND APPRAISEMENT 205 real or personal estate, except the property reserved as the absolute property of the widow.' He must make an in- ventory of all the real and personal estate of the deceased, describing the quantity, situation and title of the real es- tate, also books and papers, the debts due or to become due to the deceased, the names of debtors, the date of the contract, the amount of interest then due thereon, the rate of interest and such further description as renders it a per- fect inventory of the estate.* But he is not permitted to open or examine and inventory the papers and effects of the deceased without the aid and presence of two witnesses, to be appointed by the court (or clerk in vacation) at the time of granting letters on the estate, under penalty of forfeiting to those entitled to the estate a sum not exceed- ing five thousand dollars, to' be recovered in the circuit court.^ It is enacted by statute that at the time of appoint- ing an administrator or granting letters testamentary to an executor, the court, or clerk in vacation, shall name two respectable householders of the vicinity of the abode of the deceased, who are disinterested and of no kin to the admin- istrator or executor, as witnesses, to accompany and aid the administrator or executor in opening and examining the papers, money and other property of the deceased, and in making an inventory thereof; and if they fail to attend, the court or clerk shall appoint others in their stead, so that two witnesses shall be present to attend the proceed- ing before it shall be lawful for any executor or adminis- trator to open or examine such papers, money or other property, by virtue of his appointment." The appointment of the witnesses should be made in writing and memoran- dum thereof entered of record in the order book of the court. Form for Appointing Witnesses State of Missouri, ) County of . f To E. F. and G. H.: You are notified that you were this day appointed as \vltnesses to accompany and aid J. D., administrator (or executor) of the estate of 3 Rev. St. 1000, § 64 ; Eisiminger v. Stanton. 129 Mo. App. 403, 107 S. W. 400; Haynes v. Carpenter. 86 Mo. App. .30. 4 Rev. St. 1909, § 05 ; McCarty v. Frazer, 62 Mo. 203 ; Lewis v. Carson, 93 Mo. 5S7, 3 S. W, 4S3, 6 S. W, 365 ; Hi lor v. Cox, 210 Mo. <)96, 109 S. W. 670. 5 Rev. St. 1900. § 69. « Rev. St. 1909. § 68. 206 INVENTORY AND APPRAISEMENT § 204 R. R., deceased, in opening and examining the papers, money and otlier property of the deceased, and in making an inventory thereof. Given nnder my hand, this day of , 19 — . J. 11., , (Style of office). The Entry Appointing IVitncsscs Estate of ] R. K.. deceased. J J. D., having been appointed administrator of said estate, E. F., and G. H. are hereby apiiointed witnesses to accompany and aid him in opening and examining the papers, money and otlier property of the deceased, and in making an inventory tliereof. Form of Inventory An inventory of the real and personal estate of R. R., late of the county of , deceased, taken and made by J. D., executor (or administrator) of said deceased, and E. F. and G. H., witnesses ap- pointed by the court (or clerk of the court in vacation), to aid in making the same. REAL ESTATE OF DECEDENT Situate in the county of , state of Missouri: Lot No. Five (5) in block lilighteen (18), in the city of , con- veyed to R. R., deceased, by J. N., by warranty deed dated • day of , 19—. The southwest quarter of Section 10, Township , Range , IGO acres, conveyed to R. R., deceased, by O. R., by quit- claim deed, dated day of , 19 — . PERSONAL ESTATE Goods and chattels as follows: One bay saddle-horse, six year.s old. One saddle. , One russet bridle. One two-horse carriage. Notes as follows: John Jones' note for $600, dated June 1, 1SS9, payable six: months after date $G0O 00 Interest now due 47 00 [Etc., etc., etc.] Account as per books: John Jones, for goods $G5 70 "William Bay, for goods 40 54 [Etc., etc.] RECAPITULATION Goods and chattels as per appraisement .$ Notes and interest • Accounts ■ Stocks Cash Total personal estate $ C. D., of A. B., Deceased. § 205 INVENTORY AND APPRAISEMENT 207 The executor or adniini-tralor must annex to the in- ventory an afifidavit stating that it is a full inventory and description of all the money, goods, chattels, and estate, real and personal, books, papers, evidences of debt, and of title of the deceased, and of all debts due and becoming- due, so far as he can ascertain them, except the property reserved as the absolute property of the widow (or chil- dren), and that he was not indebted or bound in any con- tract to the deceased at the time of his death, except as stated in the inventory.'^ Form of Affidarit State of Missouri, 1 County of . j Ou this day of , in the year of our Lord 19 — , before rue, of the , within and for the county aforesaid, per- sonally appeared C. D., administrator of A. B., late of the county of , deceased, who. being by nie duly sworn, on his oath says that the foregoing is a full inventory and description of all the money, goods, chattels and estate, real and i)ersonal, books, papers, evideut-es of del)t and of title of the deceased, and of all debts due or becom- ing due so far as he can ascertain them, except the property re- s<'rvcd as the absolute property of the widow, and that he was not indebted or bound in any contract to the deceased at the time of his death, except as stated in the inventory. C. D. Sworn to and subscribed before me at tlie county aforesaid this day of , A. D. 19—. E. F. § 205. Same — Certificate of Witnesses. — The statute does not expressly recjuire that the witnesses should cer- tifv or make any return to the court of their action in the premises, but as their presence and aid is essential to the authority of the executor or administrator, as a matter of prudence they should certify to the fact of their presence and assistance in making the inventory. Their certificate may be in the following form : Certificate of Witnesses We. the undersigned householders of the vicinity of the last abode of K. K., deceased, disintex'ested and not of kin to J. D., the executor of said R. R., deceased, appointed by the of the probate court. as witnesses to accompany and aid said executor in opening and ex- amining the papers, money and otlier property of the deceased, and in making an inventory thereof, certify that we did, on the day of , 19 — , perform the duty required of us, and that the 7 Rev. St. 1909, § GG; McCarty v. Frazer, G2 Mo. 2G3. 208 INVENTORY AND APPRAISEMENT § 206 foregoing Is a full and complete inventory of the property and effects of the said R. R., deceased, so far as the same came to our knowl- edge. Given under our hands, this day of , 19 — . E. F., G. H., Witnesses. § 206. An Inventory is a list, schedule or enumeration in writing, containing (article by article) a description of all the real and personal estate, rights and credits of the dece- dent.^ We have endeavored to point out briefly in chapter XVI, what property of the decedent goes to his personal rep- resentative, and in doing so have signified what property must be inventoried, for, in general, everything that goes to the representative in right of the decedent must be placed upon the inventory. The general rule, as to what are re- garded as assets in the hands of the personal representative, is stated in a book of authority, thus: "All those goods and chattels, actions and commodities, which were of the deceased in right of action or possession as his own, and so continued to the time of his death, and which after his death the executor or administrator doth get into his hands as duly belonging to him in the right of his executorship or administratorship, and all such things as do come to the administrator in lieu of or by reason of that, and noth- ing else, shall be said to be assets in the hands of the ex- ecutor or administrator to make him chargeable to a cred- itor or legatee." ^ Whether the decedent's title to the property be perfect or not, it should be mentioned, as the executor or administrator cannot be the judge of title. All real property to which the decedent had an apparent claim should be included in the list, and the nature of such claim should be stated. Where the interest of the deceased in real property determines upon his death the property should not be included in the inventory of his personal representa- tive, and this is true even though the widow is entitled to dower therein.^'' It is also the duty of the administrator or executor to inventory property fraudulently concealed, but not property fraudulently conveyed. ^^ Property spe- 8 2 Bouv. Inst. 475. » Shep. Touchstone, 496 ; Blount v. Harney, 43 Mo. App. 647. 10 Dameron v. Lanyon, 234 Mo. 627, 138 S. W. 1. 11 Andruss v. Doolittle, 11 Conn. 283; Hayes v. Fry, 110 Mo. App. 20, 83 S. W. 772. § 207 INVENTORY AND APPRAISEMENT 209 cially bequeathed, and debts due from the executor or ad- ministrator, should he inventoried.^^ But such debts are not to be treated as cash in his hands, but only as assets,'"' unless he is solvent, in which case it will be treated as so much cash.^'* And naming a debtor as executor does not release the debt, but the executor must account for it as part of the estate. Debts secured by mortgage on real estate must be inventoried, and the debt and mortgaged premises are personal assets, and when the debt is paid the executor or administrator must release the mortgage. ^'^ This applies as well to debts which are secured by deed of trust upon real property. § 207. When Debts or Claims for Money are listed the amount and nature of the debt, rate of interest, amount of interest due, and the name of the debtor should be stated ; and if the demand is doubtful or desperate the fact should be stated. The executor or administrator will be obliged to show good cause for not collecting the debts mentioned to be due, unless he had the precaution to note them in the inventory as desperate or doubtful. ^*^ If he marks a debt doubtful or desperate, it will devolve on the creditor or distributee to show that the same was good and might have been collected. Formerly, if a person administered without making an inventory, the law supposed him to have assets for the payment of all debts and legacies, unless he repelled the presumption. But if he made an inventory he was not presumed to have more efifects than are comprised in it, and the proof of any omission was thrown on the opposite party.^^ Whether the presumption of assets, where no inventory is made, would be held to be the law here is perhaps an open question. The statute requiring the inventory would lend many presumptions against the executor or administrator should he fail to comply with the law in this respect. Indeed, the failure to make a com- plete inventory is a breach of the conditions of the bond 12 Eaton V. Walsh, -lli Mo. 2712; Rov. St. 10(». §i5 107. 108; Mc- Carty v. Frazer, 62 Mo. 2G;i ; Wilson v. Ruthraufl:, 82 Mo. Apy. 4o5 ; Young V. Thrasher, 48 Mo. App. 327. 13 Young V. Thrasher. 48 Mo. App. 327. 14 Wilson V. Kuthrauff, 82 Mo. App. 435. IB Dodge V. Beeler, 12 Kan. 520. 16 2 Kent's Com. 415. 17 Lawrence v. Ileister, 3 liar. & J. (Md.) 373. Kel.Mo.P.G.— 14 210 INVENTORY AND APPRAISEMENT § 208 of the executor or administrator/^ It is the general rule, that the personal representative cannot be charged with an}' other goods or assets than those which come into his hands. § 208. Same — Property Allowed the Widow. — The ob- ject of an inventory is to exhibit in a convenient form to all persons interested in the estate of the deceased, that portion of the personal property which is assets in the hands of the executor or administrator, for the payment of debts and legacies. The statute seems to contemplate the omission from the inventory of all the property allowed to the widow, as her absolute property,^® yet it is better practice to include in the inventory all personal property of the deceased.^" When this is done the administrator should, after the inventory and appraisement be made, de- liver to the widow the property to which she is entitled and take her receipt for it. His action, if he desires to protect himself from future attack on the part of the heirs and creditors, should be taken only under order of court. If he should without first obtaining an order from court al- low to the widow her absolute property, this action should be placed in written form and submitted to the court for its approval. § 209. The Appraisement, When and How Made. — After having collected and inventoried the personal estate, the executor or administrator must cause it to be appraised by three disinterested householders of the county, who, before entering on their duties, must make an affidavit that they are not interested, nor of kin to any person interested in the estate, as heir or devisee, and that they will, to the best of their ability, view and appraise the personal estate to them produced. The executor or administrator may ad- minister all the oaths and affirmations to appraisers and witnesses in taking the inventory and appraisement.-^ The executor or administrator selects the appraisers. He should be careful to select men of integrity and judgment, who would be likely to be impartial, and, of course, they 18 Sherwood's Adm'r v. Hill, 25 Mo. 391. 19 Rev. St. 1909, § 66. 2 Griswold v. Mattix, 21 Mo. App, 282; Glenn v. Gunn, 88 Mo. App. 42.3. 21 Rev. St. 1909, §§ 75, 76, 77. § 209 INVENTORY AND APPRAISEMENT 211 must not be interested, nor of kin to anybody that is inter- ested in the estate, as heir or devisee. The persons ap- pointed as witnesses need not necessarily be chosen as ap- praisers, but as they are probably competent and qualified to act, it would be more convenient and less expensive to make them, iu connection with a third person, the apprais- ers, and then make the appraisement at the same time the inventory is taken. When an article of property is inven- toried, place it on the appraisement list, and affix the value of it and thus proceed with the inventory and appraisement until both are completed. The appraisers must view and appraise the property and make a list thereof, specifying each article appraised, its value and the total amount of the appraisement, which must be signed by two or more of the appraisers.^^ The inventory, appraisement and affidavits must be filed in the office of the clerk of the probte court, within thirty days after letters are granted, and must be duly recorded by the clerk in a well bound book, to be by him kept for /