17, 1881, and recorded September 13, 1881, conveying by the same description the land described in the deed from Jacob R. Beckwith to the railway company. A deed in the same form from George B. Clark and wife to the Little River Valley & Arkansas Railway Company, dated August 17, 1881, and recorded September 12, 1889, in Book 13, p. 546, and re-recorded July 1, 1890, in Book 15, p. 187, conveying by the same description the land set out in the deed from Beck with to the railway company.

It was admitted on the trial: That on the 29th day of November, 1881, the Little River Valley & Arkansas Railway Company in Missouri was consolidated with the Texas & St. Louis Railroad Company, and conveyed to it all its property, and the two together became the Texas & St. Louis Railroad Company in Missouri and Arkansas. It was also admitted that on January 12, 1894, William R. Woodward was appointed as receiver of the property of the Texas & St. Louis Railroad Company in Missouri and Arkansas, in a suit wherein the Central Trust Company of New York is plaintiff and the Texas & St. Louis Railroad Company defendant, which suit was pending in the United States circuit court for the Eastern district of Missouri. That on the 13th of April, 1885, Samuel W. Fordyce was appointed receiver of the property of the Texas & St. Louis Railroad Company in Missouri and Arkansas and another, in a suit pending in the circuit court of the United States for the Eastern district of Missouri, wherein the Central Trust Company of New York was complainant and said Texas & St. Louis Railroad Company in Missouri and Arkansas was defendant, in place of Receiver Woodward, resigned. It was further admitted by the defendant that by decree of the United States circuit court for the Eastern division of Missouri, dated December 16, 1885, in a suit wherein the Central Trust Company of New York was plaintiff and the Texas & St. Louis Railroad Company in Missouri and Arkansas was defendant, the property of every kind of said railroad company was ordered to be sold by George H. Shields. special master, in accordance with the course and practice of that court, and that at such sale the complainant or any parties or interveners might become purchasers.

Plaintiff read in evidence a deed from George H. Shields, special master, to William Mortense, George Capell, Louis S. Wolf, M. Gersheimer, and J. W. Paramore, styled the "Bondholders' Committee," dated April 29, 1886, and recorded in Book 12 of the Land Record of Dunklin County, at page 1, conveying the following property: "All the right, title, and equity of redemption of the Texas and St. Louis Railway Company in Missouri and Arkansas, or of S. W. Fordyce, receiver, or of any of the parties to this case, in and to all and singular the railroad of the Texas and St. Louis Railway Company in Missouri and Arkansas, extending from a point on the

boundary line of the states of Texas and Arkansas, at or near Texarkana, running in a northwesterly direction to a point on the Mississippi river in the state of Missouri opposite or nearly opposite Cairo in the state of Illinois, including all and singular the lands, tenements, and hereditaments of the said railway company at any time owned or acquired by it or by said receivers, and all its railroad tracks, rights of way, main lines, branch lines, extensions, sidings, superstructures, depots, depot grounds, station houses, engine houses, car houses, freight houses, wood houses, sheds, watering places, work shops, machine shops, bridges, viaducts, culverts, fences, and fixtures at any time owned or acquired by said railway company, together with all leases, leased or hired lands, leased or hired railroads of said railway company, and all its locomotives, tenders, cars, carriages, coaches, trucks, and other rolling stock, machinery, tools, weighing scales, turntables, rails, wood, coal, oil, fuel, equipment, furniture, and materials of every name, nature, and description at any time owned or acquired by said railway company or purchased by said receivers, together with all the corporate rights, privileges, immunities, and franchises of said railway company, including the franchise to be a corporation, and all the tolls, fares, freights, rents, incomes, issues, and profits thereof, and all the reversion and reversions, remainder and remainders thereof (except, however, lands, real estate, and other property not necessary for or used or acquired for the purposes of operation of said railway), including all the said mortgaged premises and property in said decrees directed to be sold, whether owned at the commencement of said suits or since acquired by the said Texas and St. Louis Railway Company in Missouri and Arkansas and by William R. Woodward, as receiver thereof, and by Samuel W. Fordyce, as receiver thereof." Also a deed from the "Bondholders' Committee," William Mortense et al., to the St. Louis, Arkansas & Texas Railway Company, dated May 4, 1886, and recorded in Dunklin county, in Book 12, page 7, conveying by the same description the same property. It was then admitted that "S. W. Fordyce was appointed receiver of the St. Louis, Arkansas & Texas Railway Co. in Arkansas and Missouri May 14, 1889, by the circuit court of the United States for the Eastern division of the district of Missouri; that on June 24, 1889, by order of the same court, A. H. Swanson was appointed coreceiver with S. W. Fordyce of the same property."

Plaintiff next read in evidence a decree of foreclosure and sale made in the circuit court of the United States for the Eastern division of the Eastern judicial district of Missouri in a suit then pending in said court wherein the Central Trust Company of New York and the Mercantile Trust Company were complainants and the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri

was defendant, styled: "In Equity. Nos. 3030 and 3121. Consolidated Cause,"-which said decree was made at the March term, 1890, of said court, and ordered the sale of all the property of the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri to be made by David P. Dyer, special master. Said special master was ordered to make said sale, in accordance with the usual practice of the court, to the highest bidder, at such time and place as he should himself appoint, having given notice required by the order. It was next admitted that the report of the sale of this property to Fitzgerald, as trustee, has been made, and further admitted that that report of sale was confirmed by the court. Plaintiffs then read a deed from David P. Dyer, special master, and the St. Louis, Arkansas & Texas Railway Company, to Louis Fitzgerald, styled the "purchasing trustee," dated February 5, 1891, and recorded April 29, 1891, conveying the following property: "All the right, title, and equity of redemption of the St. Louis, Arkansas and Texas Railway Company in Arkansas and Missouri, and of S. W. Fordyce and A. H. Swanson, receivers, and of any of the parties to this cause, or of either of them, in and to all and singular the railroad of the St. Louis, Arkansas and Texas Railway Company in Arkansas and Missouri, its main line beginning at Bird's Point, on the Mississippi river, in Mississippi county, Missouri, opposite or nearly opposite Cairo, Illinois, and extending southwestwardly through the counties of Mississippi, New Madrid, and Dunklin, in the state of Missouri, etc. [describing the lines of railroad and branches], the total number of miles of main line and branches aforesaid being about five hundred and eighty-two miles; also all its lands and rights of way, depots and depot grounds, shops and shop grounds and yards, its leases, leased and hired lands, and all its rails, railways, sidings, switches, bridges, fences, turntables, water tanks, and all other buildings, structures, or fixtures whatsoever; also all its locomotives, tenders, cars, carriages, coaches, trucks, and other rolling stock and equipment, its machinery, tools, weighing scales, wood, coal, oil, fuel, machinery, and implements, and all other property of every character or description, real, personal, or mixed, and forever situate, together with all the real estate, real, corporate rights, privileges, immunities, and franchises of the said railway company, including the franchise to be a corporation; and all the tolls, fares, freights, rents, income, issues, and profits of the said railroad, and all interest, claims, and demands of every nature and description; and all the reversion and reversions, remainder and remainders, thereof, including all the said mortgaged premises and property in said decrees directed to be sold at any time owned or acquired by said the St. Louis, Arkansas and Texas Railway Company in Arkansas and Missouri, or by S. W. Fordyce and A. H. Swanson, as receivers

thereof." Also a deed dated February 12, 1891, signed, "Samuel W. Fordyce [Seal], A. H. Swanson [Seal], as Receivers, Grantees, Louis Fitzgerald, Purchasing Trustee,"-reciting that it is made by order of the circuit court of the United States, in pursuance of the decree and report above offered in evidence, acknowledged February 17, 1891, recorded April 29, 1891, in Book 15, pages 579 to 585, conveying "any and all property of the said railroad company vested in or standing in the name of the parties of the first part, or either of them, as receivers of said defendant railroad, and to all property pertaining to or appertaining to said railroad, and property which they, as said receivers, have in any manner acquired or may acquire during their said receivership; said railroad and property being more fully described as follows: [including the length of miles of road and counties through which it runs]." Also, "all its lands and rights of way, depots, depot grounds, shops and shop grounds and yards, its leases, leased and hired lands, and all its rails, railways, sidings, switches, bridges, fences, turntables, water tanks, and all other buildings, structures, or fixtures whatever; and all other property of every character or description, real, personal, or mixed, wheresoever situate, with all the [title] corporate rights, privileges, immunities, and franchises of the said railroad company, and all the reversion and reversions, remainder and remainders, thereof, including all the said mortgaged premises and property in said decree directed to be sold." Also a deed from Louis Fitzgerald, purchasing trustee, to the St. Louis & Southwestern Railway Company, dated February 9, 1891, and recorded April 29, 1891, conveying the property acquired by him from David P. Dyer, special master. Next, an entry in the circuit court, recorded at the July term, 1891, as follows: "By agreement of parties, the St. Louis and Southwestern Railway Company is made party plaintiff herein, and this cause is continued." Plaintiffs then introduced evidence tending to show defendant in possession of the premises sued for at the time of the commencement of the suit, and rested.

Defendant, to sustain the issues on his part, offered evidence as follows: (1) Record of the plat of the town of Malden, recorded in Book 3, p. 275, tending to show that the line between sections 10 and 15, township 22, range 10, was the south boundary line of the town of Malden. (2) A general judgment, rendered by the circuit court of Dunklin county, in favor of Moses M. Lawson, as administrator of the estate of Brumfield Beckwith, deceased, against Jacob R. Beckwith, for $651.01, dated June 3, 1881. (2a), A deed from Margaret P. Beckwith to Jacob R. Beckwith, conveying 15 acres off of the east side of the N. E. 4, N. W. 14, section 15, township 22 N., range 10 E., dated July 1, 1881, and recorded July 7, 1881. (3) A sheriff's deed under execution issued upon the judgment recov

Objected to by counsel for plaintiffs, because the original deed has not been accounted for. Objection sustained, and defendant excepted.

There can be no question but that the judgment in favor of M. M. Lawson, administrator, against J. R. Beckwith, which was rendered in the circuit court of Dunklin county on the 3d day of June, 1881, was a lien from that time on until the expiration of three years on all real estate which Beckwith then owned in said county, or which he thereafter acquired during the existence of such lien; and whatever interest George B. Clark may have acquired from him by deed in the land in question during that time was subject to the lien of that judgment. It therefore logically follows that the sheriff's sale under execution issued upon said judgment, and the deed executed by him to Lawson in pursuance thereof, vested in Lawson whatever title J. R. Beckwith had in said land upon which the judgment was a lien. Had the evidence stopped here, it would have shown the legal title to have been outstanding in Lawson at the time of the commencement of the suit; but the record shows that the evidence went further, and showed that Lawson, by deed dated February 11, 1882, and recorded the same day, sold and conveyed to Clark 15 acres off of the east side of the N. E. 14 of the N. W. 1/4 of section 15, township 20, range 10. He and his wife had before that time, to wit, August 17, 1881 (recorded September 12, 1889, and again July 1, 1890), conveyed by deed of general warranty containing the words, "grant, bargain, and sell, convey and confirm," to the Little River Valley & Arkansas Railway Company, under which plaintiffs which plaintiffs claim title, the same piece of land; and by reason of the covenants contained in their deed, whatever title or interest George B. Clark then owned or subsequently acquired in and to said land inured to the benefit of plaintiffs, they being the grantees of the Little River Valley & Arkansas Railway Company. Norfleet v. Russell, 64 Mo. 176; Bogy v. Shoab, 13 Mo. 381. There are many other authorities to the same effect. Rawle, in his work on Covenants for Title (section 248), says: "Where, however, the deed does contain such recital or averment, and more especially where it contains certain of the covepants for title, it has been held by a large

acquired estate will inure, by virtue of the covenants, the party claiming under the conveyance and his heirs and assigns, by direct operation of law, with the same effect, to all intents and purposes, as if such estate had originally passed by the deed." It makes no difference that the covenantor may not have had title at the time of the execution of the covenant. In such circumstances the subsequently acquired title inures to the benefit of the original grantee or covenantee or his assigns to the extent of the land previously conveyed. From these considerations it must follow as a sequence that the court did not err in refusing the second instruction asked by defendant. It did not cover the issues and facts of the case.

It is contended by defendant that the evidence did not show that plaintiffs had acquired title to the land of the Texas & St. Louis Railway Company, for that the deed from George H. Shields, special master in chancery, to Mortense et al., called the "Bondholders' Committee," is inoperative to pass. any title to the premises in question, because of the following language contained in such deed, to wit: "Except, however, lands, real estate, and other property not necessary for or used or acquired for the purpose of operation of said railway." The evidence showed that a depot was erected on the land in 1881, that transfer platforms had been constructed, and side tracks put down, as the business of the road might require, and as it became necessary. This evidence clearly showed that the land was not within the exception.

Another contention is that the court refused to give the third instruction asked by defendant, to the effect that the deed from Shields, special master in chancery, to Mortense et al.; the deed from the committee for bondholders to the St. Louis, Arkansas & Texas Railway Company; the deed from D. P. Dyer, special master in chancery, to Louis Fitzgerald; the deed of S. W. Fordyce and A. H. Swanson, receivers, to said Fitzgerald; and the deed from Fitzgerald to the St. Louis & Southwestern Railway Company, introduced by plaintiffs,-did not convey or pass any title to the premises. This instruction was asked upon the ground of the insufficiency and uncertainty of the description of the land intended to be conveyed. The property is described in the deed of Dyer, special master in chancery, and in the receivers' deeds, as follows: "All and singular the railroad of the St. Louis, Arkansas and Texas Railway Company in Arkansas and Missouri, * * * through the counties of ** and Dunklin, in the state of Missouri * *; also all its lands and rights of way, depots, and depot grounds, together with all the real estate of said railway company, *** wherever situated. ***" A description of land not more definite was held sufficient to pass the title in Railway Co. v. Maffitt, 94 Mo. 56, 6 S. W. 600. The land in question in that

case was a part of a tract of 100 feet on the south side and 150 feet on the north side of the railroad track, donated to the Missouri Pacific Railway Company by the owner in platting the land adjacent to said road. The court said: "While this description does not set out specifically the lot in controversy, yet there was, we think, no error in holding it sufficient to identify the property and to pass the title." The land in question is a part of a larger tract acquired for a right of way and depot grounds through which the railroad was constructed, on which a depot was erected and side tracks laid. It would be impracticable, in conveying railroad properties under such circumstances, to require a specific description by metes and bounds of all depot grounds, and grounds used for side tracks and stations. The description we think sufficient, under the circumstances.

The evidence was conclusive as to the possession of defendant at the time of the commencement of the suit, to wit, June 19, 1890, so that he was not prejudiced by the refusal of an instruction submitting that question to the jury.

There being no question of innocent purchaser involved in this case, and as from what has been said whatever title George B. Clark acquired to the land in question by reason of his deed from Lawson inured to the Little River Valley & Arkansas Railway Company, his former grantee, to whose title plaintiff's succeeded, it becomes unnecessary to pass upon the action of the court in excluding the record of the deed from Clark to the defendant, as he acquired no title by that or any subsequent deed which was read or offered to be read in evidence by him. The judgment was for the right party, and should be affirmed. It is so ordered.

GANTT, P. J., and SHERWOOD, J., con

cur.

BERBERET v. BERBERET et al. (Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.) WILL-ATTESTATION-EXECUTION-UNDUE INFLU ENCE-BURDEN OF PROOF.

1. Under Rev. St. 1889, § 8870, providing that every will shall be attested by two or more witnesses, subscribing their names to the will in the presence of the testator, the signatures of the witnesses, without the attestation clause, is sufficient.

2. A will dictated by a widow, of requisite age and sound mind, and signed by her in the presence of two witnesses, who subscribed their names in her presence, was properly executed.

3. Though a son is made executor of a will, and he is shown to have had influence over the testatrix, the burden of proving that the will was fairly executed is not on him, in an action against him to set aside the will, in the absence of evidence that he used his influence for his own advantage.

Action by George W. Berberet against Enos B. Berberet and others to set aside a will. Plaintiff had judgment, and defendants appeal. Reversed.

This is a suit to set aside the will of Eve Catharine Berberet, late of Knox county. For grounds for setting aside the will the petition alleges: (1) That the instrument of writing admitted to probate is not the last will of the deceased, Eve Catharine Berberet, for the reason that it is not signed, published, and declared by two attesting witnesses, upon its face or anywhere upon it, in writing, to be such will, and that it is not executed and attested by at least two witnesses, according to law. (2) That any or all proof to show that the will was signed, attested, published, and declared in the presence of at least two attesting witnesses, and that they, at her request and in her presence, subscribed said writing as such witnesses, and intended so to do at the time, and that the said deceased was then of sound and disposing mind, was and is all within the statute of frauds and purjuries, for the reason that it is not stated, in whole or in part, upon or in said writing. (3) That said writing was not understood by the deceased, that its provisions or terms were not of her framing or choosing, and that it was never explained or understood by her, and that she never so published or declared it to two or more attesting witnesses, etc. (4) That the said instrument of writing, purporting to be the will of the deceased, is in the handwriting of the executor therein appointed, who is alleged to be the principal devisee under its terms; that said writing was composed and framed by him, and the signature of said deceased procured thereto when she did not understand it, by reason of his undue influence over her. The petition then concludes with the usual prayer, asking to have the writing declared to be not the last will of the deceased, Eve Catharine Berberet. The answer of the defendants, after admitting the formal allegations of the petition as to the relation of the parties to the testatrix, denies that the proof necessary to establish said will is or was within the statute of frauds and perjuries, as alleged in the petition; denies that the instrument in question was dictated and framed by the executor therein named; denies that the deceased did not understand the provisions of said instrument; denies that the said executor therein

named dictated, advised, or counseled the making of said will; but avers that the executor therein named wrote said will at the request of the deceased, who dictated every clause and provision thereof, that deceased was at the time of sound and disposing mind and that she clearly understood the nature of the business in which she was engaged, and that the instrument of writing in question is the last will and testament of Eve Catharine Berberet, deceased, and that she understood

A trial was had on the issues thus joined at

the June term of the circuit court, which resulted in a verdict for the contestant. fendants then filed motions for new trial and in arrest, which being overruled, they appealed.

Lafe Dawson and John W. Ennis, for appellants. O. D. Jones, for respondent.

BURGESS, J. (after stating the facts). The will bears date January 19, 1893, and Mrs. Berberet died the 8th day of February, 1894. She was at the time of her decease about 72 years of age, and was the mother and grandmother of the defendants, her children and grandchildren, 11 in all. The property disposed of by the will was of the value of about $7,000. Her husband died January 8, 1877, leaving an estate worth $20,000, and she and her son Enos were executors of his will, Enos having the principal charge and management of the business. The estate was still unsettled at the time of her death. Enos and Joannah, her daughter, testified that their mother requested him to write the will, and that he came to her house in Edina, where she had been living and keeping house with Joannah, to write it. Enos testified that it was written five or six weeks before it was taken by her to Joseph Hirner, Atlay J. Steffen, and Thomas Burk to get them to sign it as witnesses to its execution. He and Joannah also testified that the will was dictated by their mother, and explained by them to her. It was also shown by Joannah that, three weeks before the will was written, her mother insisted that she should write her will, that she declined to do so, and that she then asked Enos two or three times to write it before he consented. Mrs. Berberet could not read written English, but could printed. She could read written English, and spoke it fluently. The will was written by Enos, and admitted to be in his handwriting. It was signed by Mrs. Berberet in German, and Hirner and Steffen signed it, in her presence and at her request, as witnesses thereto. On behalf of contestant, it was shown that Mrs. Berberet and Enos, as executors of the estate of Enos Berberet, deceased, were entitled to commissions as such executors amounting to about $1,600, which she had given to her said son by her will. Evidence was also introduced tending to show that Enos had influence over his mother in matters of business.

The writing in contest is as follows:

"In the name of the Lord my God, Amen. Know all men by these presents, that I, Eve Catharine Berberet, of the city of Edina, in the county of Knox, state of Missouri, being of sound and disposing mind, do make and publish this my last will and testament, hereby revoking all other wills.

"First. I desire that my funeral expenses and the services of a requiem mass and all debts that I may be owing be first paid, and a neat tombstone be placed over my

grave, of the value of not less than seventyfive dollars and not more than one hundred and twenty-five dollars. The said one hundred and twenty-five dollars for a tombstone shall include a small tombstone to be erected over my sister Susan Fox's grave, now lying in the Catholic cemetery in Edina, Knox county, Missouri. The cost of said Susan Fox's tombstone is not to exceed over twenty-five dollars.

"Second. I give and bequeath the sum of fifty dollars to the person officiating as pastor of the St. Joseph Catholic Church, of Edina, Knox county, Missouri, to be used and applied to the benefit of said church,the money to be paid to the pastor of St. Joseph Church as soon as my executors may conveniently receive the same.

"Third. I desire that my said executors shall have masses read for the said Eve Catharine Berberet to the amount of seventy-five dollars,-thirty-five dollars for high masses and forty dollars for low masses; the high masses to be said, one each year, on the day of each year of my death, and the low masses, to be said one at the end of every four months. My executors shall notify said parish priest of St. Joseph Church when to be read, and shall pay for same when each mass is read, in case of my death. If there can be a final settlement made before the amount of masses read, then, in the event, the money for said masses shall be paid over to my executors, to be used for said above masses.

"Fourth. I desire that my executors shall pay to my daughter Joannah G. C. Berberet the amount of two dollars per week for her services and attention given at my last sickness, to be paid to her as conveniently as my executor may receive the same.

"Fifth. I give and bequeath to each of my following named children the sum of sixty dollars each: To Nicholas J. Berberet, E. B. Berberet, Joannah G. Berberet, Emma McBride, wife of John McBride, Florence T. Miller, wife of John Miller, said amount to be paid as soon after my death as my executors may conveniently receive the same, as the above amounts has been made to me as presents heretofore from each.

"Sixth. I give and bequeath to my daughter Joannah G. C. Berberet all my wearing apparel, all my household and kitchen furniture, beds and bedding, all provisions and wood that I may depart this life possessed; and it is my desire that my said daughter, Joannah G. C. Berberet, shall take immediate possession of all of said property named in this clause after my death, and the same shall not be included in the inventory of my estate.

"Seventh. I give and bequeath to my son John W. Berberet the sum of fifty dollars, to be paid to him by my executor when a final settlement can be made of my estate, both real and personal. If the whereabouts of my son John W. Berberet cannot be found