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at the time of my final settlement, then the said fifty dollars shall be paid equally to his children. The said sum of fifty dollars shall be the full and complete share of my said son, John W. Berberet, in and to all my estato, both real and personal.
"Eighth. I give and bequeath to my son Michael J. Berberet the sum of one hundred dollars, to be paid to him by my executors when a final settlement can be made of my estate. Said sum, one hundred dollars, shall be the full and complete share of my said son, Michael J. Berberet, in and to all my estate, both real and personal.
“Ninth. I give and bequeath to my son George W. Berberet the sum of one hundred dollars, to be paid to him by my executors when a final settlement can be made of my estate. Said sum, one hundred dollars, shall be the full and complete share of my said son, George W. Berberet, in and to all my estate, both real and personal.
“Tenth. I give and bequeath to the heirs of Elizabeth J. Reis, my daughter, now deceased, the sum of forty dollars, to be paid to them by my executors when a final settlement can be made of my estate. Said sum of forty dollars shall be the full and complete share of my said daughter, Elizabeth Reis, now deceased, in and to all my estate, both real and personal.
"Eleventh. I give and bequeath to the heirs of Mary C. Reis, my daughter, now deceased, the sum of forty dollars, to be paid to them by my executor when a final settlement can be made of my estate. Said sum of forty dollars shall be the full and complete share of my said daughter, Mary C. Reis, now deceased, in and to all my estate, both real and personal.
“Twelfth. I give and bequeath to my son E. B. Berberet all fees and commissions arising out of and due me, at present and future, by reason of my being coexecutor, with my son E. B. Berberet, of my late husband, Enos Berberet, deceased, estate; and I further agree that, in case there has been, or may hereafter be, any losses of money or property in the administration of the estate of Enos Berberet, deceased, by myself and my said son, E. B. Berberet, the whole of the same shall be paid out of my money or property belonging to my estate, so that my said son, E. B. Berberet, shall not lose or be compelled to pay any part of the same, and the remainder of my said estate, not herein and before distributed, shall all be held subject to the payment of any such deficiency.
"Thirteenth. I give and bequeath to my children, Nicholas J. Berberet, E. B. Berberet, Franklin J. Berberet, Joannah G. C. Berberet, and Emma A. McBride, wife of John McBride, and Florence T. Miller, wife of John Miller, in equal parts, share and share alike, all the balance of my real and personal property, of my estate, of which I may depart my life possessed of; subject, however, as to the several legacies and sums
and conditions herein and before mentioned and described in the above will.
"Fourteenth. This includes all clauses in said will. It is my strictly request, if any of my said children or heirs shall decline or refuse to abide under my said will and testament, then, in that event, they shall receive only the sum of five dollars, and shall therefore be excluded from my said will and my real and personal property.
"I hereby appoint my son E. B. Berberet my executor to execute and carry out the intention of this my last will and testament.
"In witness whereof, I hereby set my hand and affix my seal, this 19th day of January, 1893. “[In German.)
"Eve Catharine Berberet [Seal.]
“Thomas Burk. [Seal.]” Plaintiff's insistence is that the writing in contest is not the will of Eve Catharine Berberet, and was improperly admitted to probate as such, because not executed according to law, in that it has no attesting clause, and does not show on its face the character in which Steffen and Hirner signed it, whether or not as attesting witnesses, within the meaning of section 8870, Rev. St. 1889, in regard to the manner in which such instruments are required to be executed. That section reads as follows: "Every will shall be in writing, signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator." The statute says the will shall be "attested by two or more competent witnesses subscribing their names thereto." It does not say that the word "Attest" shall be written on, or at the conclusion of, the will, or that there shall be written thereon anything whatever other than the names of the attesting witnesses. At common law attestation of a will was not necessary. That requirement in order to its execution is purely statutory. Under a statute of Massachusetts, which requires a will to "be attested' and subscribed in the presence of the testator by three or more competent witnesses" (Rev. St. Mass. c. 62, 8 6), it was held, by the supreme court of that state, in a case where the subscribing witnesses had signed their names in the usual place for the signatures of witnesses, but without any attestation clause, to be a compliance with the statute. Ela v. Edwards, 16 Gray, 91. The court says: “The single requirement of the statute is that the instrument 'be attested and subscribed in the presence of the testator by three or more witnesses. Even as to this, though it be essential that the facts be so established by the evidence, yet neither the statute nor the decisions of the courts require that it be recited in the form of an attestation clause." In Roberts v. Phillips, 4
El. & Bl. 450, it is said: "It never has been read English) and the other evidence in the held that a testimonium clause is necessary cause, that he had great influence over the under this statute, or that the witnesses should mind of his mother, and that advantage is be described as witnesses on the face of the given him by the terms of the will, then the will. Nothing more is required than that the burden was cast upon him to show that the will should be attested by the witnesses, i. e. will was fairly obtained, etc. The presumpthat they should be present as witnesses, tion is in favor of the validity of the will, and see it signed by the testator, and that it and the fact of unjust discrimination in its should be subscribed by the witnesses in provisions, if such be the case, and the other the presence of the testator, i. e. that they facts before stated did not shift the burden should subscribe their names upon the will in of establishing its validity on the defendant. his presence." In the case of Fry's Will, 2 There must have been undue influence exerR. I. 88, there was no attestation clause oth- cised in the procurement of the will. MCer than the word “Witness.” One of the Fadin v. Catron, 120 Mo. 252, 25 S. W. 506; subscribing witnesses having died, upon Maddox v. Maddox, 114 Mo. 35, 21 S. W. 499. proof being made of the handwriting of the It is not enough that Enos B. Berberet had subscribing witness and of the testator, it great influence over his mother, in respect was held to be prima facie evidence that all of her business affairs alone, in order to shift the requirements of the statute had been the burden to him in explanation of such complied with. To the same effect is Jack- discrimination; but it must be shown that son v. Christman, 4 Wend. 277. The evi- he procured the execution of the will by the dence conclusively showed that the paper exercise of such influence, and thereby gainwas drawn up by Enos Berberet, one of the ed an unfair advantage. A testator having sons of the testatrix, at her request; that she sufficient mental capacity has the right "to dictated it; that it was then explained to make an unreasonable, unjust, injudicious her by him; that she went to A. J. Steffen will; and his neighbors have no right, sitand asked him if he would sign her will and ting on a jury, to alter the disposition of testament, and he told her that he would; his property simply because they may think that she then went off, and in about three the testator did not do justice to his family weeks came again into his store and asked connection." Boylan v. Meeker, 15 N. J. Eq. him to sign it; that she then went out and 310, quoted with approval in Maddox v. Madcame back with Mr. Hirner, and signed the dox, supra. See, also, Mackall v. Mackall, will in their presence,-she signing it first, 135 U. S. 171, 10 Sup. Ct. 705, and cases citHirner next, and the witness last, all in the ed; Smith v. Smith, 48 N. J. Eq. 591, 25 Atl. presence of each other. Joseph Hirner testi- 11; Jackson v. Hardin, 83 Mo. 185; Farmer fied that she called on him, in his store, in v. Farmer (Mo. Sup.) 31 S. W. 926. Mrs. the winter, and asked him if he would come Berberet was shown by the evidence to be a up to Mr. Steffen and witness her will; that woman of more than ordinary intelligence he told her, “All right," and went along with and business capacity, and the execution of her; that, when they got there, she signed her will entirely free from fraud or undue the will before witness and Mr. Steffen, and influence. Not even a suspicion of fraud in their presence; and that they signed it in attended its procurement or execution; and her presence and in the presence of each oth- to sustain the verdict of the jury, under the er. After the will was signed, she again facts in proof as disclosed by the record, took charge of it. All that was done in re- would be to, in effect, say that no person, spect to procuring the signatures of the wit- however intelligent, however free from fraud nesses was done by the testatrix herself. or undue influence, could dispose of his propShe knew the character of the instrument, erty by will unless he do so according to the because she dictated it and requested the wit- ideas of fairness and justice of some jury nesses to witness it as her will. In addition who may possibly have to pass on it after to all this, she was single at the time of the his death. The judgment is reversed, and execution of the instrument, over the requi- the cause remanded, with directions to the site age, and of sound mind. We must, there- court below to enter up judgment for the fore, hold that the will was properly exe- proponents of the will, defendants herein. cuted.
Now, as to the instructions given by the GANTT, P. J., and SHERWOOD, J., concourt on behalf of the plaintiff. The first
cur. and second have, in effect, already been disposed of by what was said in the preceding paragraph of this opinion. As to the third there was no evidence to justify it, and, KREIS V. MISSOURI PAC. RY. CO.1 even if there had been, it is vicious in that
(Supreme Court of Missouri. Dec. 10, 1895.) it tells the jury that, if they believe, from
ACCIDENT ON RAILROAD NEGLIGENCE — SECOND the facts admitted (to wit, that the writ
NEW TRIAL-REVIEW. ing in contest was written by Enos B. Ber- 1. Rev. St. 1889, § 2241, providing that beret, one of the devisees, and he is also ap
"only one new trial shall be allowed to either
party, except: First, where the triors of the pointed executor in the will, that he is the
fact shall have erred in a matter of law; secson of the testatrix, and that she could not ond, where the jury shall be guilty of misbe
1 For opinion in banc, see 33 S. W. 1150.
havior,"-does not prohibit the granting of a , switch or spur leaving the south track of new trial to a party for insufficiency of the evi- the railroad about 400 feet east of Murphy's dence to support the verdict, however many new trials may have been granted him on other
crossing, and it was near the head of this grounds.
spur or switch that deceased approached 2. That one going to a depot walked in the near enough to the south track to be struck space on a double-tracked railroad, between the by the beam or deadwood of the engine attwo tracks, with an umbrella over her head, so near one of the tracks as to be struck by a train
tached to a train which was proceeding eastcoming back of her, does not show such negli- ward at a speed of about 20 miles per hour, gence on her part as to justify the taking of the
or in front of it, and was killed. The space case from the jury, there being evidence that
between the two tracks was 8 feet 542 inches, those in charge of the train knew that people were in the habit of walking between the tracks
and she was on this space all the time until at that point, and that they did not use proper the moment of the collision, when she stepped means to prevent the accident after they saw,
close to the rail, between two ties, or in or by ordinary care should have seen, her peril. Sherwood, J., dissenting.
front of the train. She was never on the 3. Granting a new trial, where there is con- | railroad track, if at all, until just at the inflicting evidence as to negligence and contribu- stant that she was struck by the train. tory negligence, will not be disturbed. Barclay and Gantt, JJ., dissenting.
Those in charge of the train had an unob
structed view of her for near 900 feet before In banc. Appeal from circuit court, Jef
it collided with her, while their evidence ferson county; James F. Green, Judge.
was that they did not discover her perilous Action by John A. Kreis against the Mis- position in time to check the speed of the souri Pacific Railway Company. A new trial train, in time to prevent the accident. As is was granted defendant, and plaintiff appeals.
usual in such cases, the evidence was conAffirmed
flicting as to whether any danger signals Carlisle & Ottofy, for appellant. Martin were given or not. On a former trial of E. Clardy, for respondent.
the cause, a verdict in favor of plaintiff in
the same amount, $5,000, was set aside on BURGESS, J. The plaintiff appealed from motion of defendant, and a new trial grantan order of court setting aside the verdict of ed, on the ground that the court permitted a jury and granting defendant a new trial. the introduction of improper testimony, and By the verdict plaintiff was awarded $5,000 gave improper instructions to the jury. for the death of his wife, Nellie I. Kreis, who The right of the plaintiff to appeal from was run over and killed by one of defend- the order sustaining defendant's motion and ant's cars at or near its depot at Webster granting a new trial is not questioned, but Groves, in St. Louis county, on the morning it is insisted by plaintiff that the new trial of April 19, 1891. The deceased left her was improvidently granted, because there home in Webster Groves, early in the morn- was no error of law committed during the ing, to take the train, by which she was trial of the cause prejudicial to the defendkilled, for the city of St. Louis. She lived ant, and, one new trial having been granted in a northwesterly direction from the station, to it, the court had no power to grant it anand had her election to go on a plank walk, other new trial because of the insufficiency extending some distance along the east side of the evidence to support the verdict. of defendant's right of way near to the de- 1. By section 2241, Rev. St., it is provided pot, or enter upon the railroad right of way, that "every order allowing a new trial shall as she and other persons in the neighbor-specify of record the ground or grounds on hood had been accustomed to do, and go which the new trial is granted.” The ground down a path, which was between two rail- upon which the order granting the new trial road tracks, running east and west. The from which plaintiff appealed is not specified evidence was conflicting as to whether she of record. While the court, in sustaining the entered upon defendant's right of way at motion and granting the new trial, rendered what was called, by the witnesses, "Mur- a written opinion, giving his reasons therephy's Crossing," or near to and east of the for, it was not spread upon the record of the crossing. The distance from the station to court, but merely filed with the papers in this crossing is about 1,200 feet. Deceased the cause, which did not make it a part of had been a resident of Webster Groves for the record. Hewitt v. Steele, 118 Mo. 463, 24 about 18 months, had frequently taken pas- S. W. 440. There were numerous causes assage on the train by which she lost her life, signed why a new trial should be granted, was familiar with the track and surround- as set forth in the motion, and if the action ings, and knew the time of the arrival of of the court in granting it can be sustained the train, which was about 9 a. m., but, on upon any one or more of the grounds asthe morning of the accident, was a few min- signed, it is the duty of this court to do so. utes late. On that morning it was misting Hewitt v. Steele, supra; Bank v. Wood rain. Mrs. Kreis had an umbrella over her (Mo.) 27 S. W. 554. A careful examination right shoulder, and a basket of eggs in her of the evidence as disclosed by the record, left hand. She did not see the train before as well, also, as of the instructions given and it struck her. The south track was used by refused, has satisfied us that there were but trains en route to St. Louis, and the north two grounds assigned in the motion upon track for those going west. There was a
which the action of the court can possibly be v.33s. w.no.1-5
upheld: First, the insufficiency of the evi- O'Neil v. Young, 58 Mo. App. 628, and is critidence; second, the refusal of the sixth in- cised by Rombauer, P. J., in a separate opinstruction asked by defendant.
ion, as follows: "That case seems to hold that With respect of the first proposition, it is in- the power of the court to grant even one new sisted by counsel for plaintiff that, as one new trial, on the ground that the verdict is opposed trial had already been granted defendant, on to the weight of the evidence, or the result of the ground that the court permitted the intro- bias, depends upon the fact whether the verduction of improper testimony and gave im- dict is the first or second verdict in the case. proper instructions, the court had no power to If it is the first verdict, the court may grant a grant defendant another new trial on the new trial; but, if it is the second verdict, the ground of the insufficiency of the evidence, court is powerless to do so, even though the and that its action in granting the second new first verdict was obtained in disregard of all trial cannot be sustained upon that ground. law, or for the grossest misbehavior of the McShane v. Sanderson, 108 Mo. 316, 18 S. W. jury, and hence, in contemplation of law, was 912, is relied upon as sustaining that conten- no legal verdict at all, if properly challenged. tion. While it may be conceded that that case This distinction, which makes the discretionseems to hold that, where one verdict has been ary power of the court dependent upon the set aside and a new trial granted for any cause,
mathematical position of its errors, strikes me another new trial cannot be granted to the as logically unsound. Statutes should receive same party on the ground that the evidence a rational construction, if they admit of it. is insufficient to support the verdict, or that the Why should a verdict, which is utterly untenaverdict is the result of bias, it must be consid- ble when properly challenged, be counted if ered with respect to the facts upon which it
it is the first verdict in the case, and yet not was decided; and, when this is done, we sub
be counted when it is the second verdict? mit that what was said with respect to the
Why should the discretionary power of the matter now under consideration was not neces- court to grant one new trial on the ground that sary to a decision of that case. In that case, the verdict is opposed to the weight of the evione new trial had been granted plaintiff on the dence be abrogated, simply because the jury ground that the verdict was against the weight were misdirected by the court on a former of the evidence. Another trial was had, re
trial? A literal reading of the statute, it sulting in a verdict in favor of the plaintiff, as seems to me, calls for no such construction.” did the former trial, and, on motion being filed State v. Horner, 86 Mo. 71, was a proceeding by plaintiff for a second new trial on the by mandamus to compel the judge of the cirground that the verdict was against the evi- cuit court to enter up judgment on a verdict dence, the court refused to entertain it, for the rendered in the court of which he was judge. l'eason that one new trial had theretofore been A former verdict in the same cause had been granted plaintiff on the same ground; and, up- set aside on the ground that erroneous instrucon this state of facts, it was said, “one new
tions had been given. A verdict was rendered trial having been granted to a party, no mat- on the second trial for $3,500, which defendter for what reason, the power to award that ants moved to set aside on the ground that the party other new trials is exhausted, except for
verdict was against the evidence, being excessome of the causes before mentioned," i. e. for sive. In passing upon the statute now under prejudicial error's committed by the court, when consideration, the court said: "We are of the the triors of fact have erred in a matter of law, opinion that this statute puts no limit to the or when the jury shall be guilty of misbehavior. number of new trials a circuit judge may We submit that what was said in the lan- grant either party, when the new trials are guage quoted was not necessary to a decision granted on account of errors committed by of that case, and is in conflict with the plain him in giving or refusing instruction, or in letter and meaning of section 2241, Rev. St. admitting or rejecting evidence. Nor does it 1899, which provides that: "Only one new trial put any limit upon the number of new trials shall be allowed to either party, except: First, he may grant when the jury err, either in a where the triors of the fact shall have erred matter of law or where they are guilty of misin a matter of law; second, when the jury behavior. * * * It is clear, we think, that shall be guilty of misbehavior.” When the the said statute, invoked by relators, was only statute says "only one new trial shall be al- intended to interdict the granting of a second lowed to either party, except," it clearly means new trial to the same party in a case where that one new trial may be granted to either such party has had one new trial granted to party, for any cause, except such as come him on other grounds than the error commitwithin the first and second exceptions of that ted by the court in the progress of the trial, section, and the section next preceding it, and or on other grounds than that the jury erred in that one new trial may be granted to either a matter of law or had been guilty of misbeparty on the ground of the insufficiency of the havior. In speaking of said statute, it was evidence to support the verdict, although there observed by Judge Scott, in the case of Boyce may have been other new trials granted the v. Smith, 16 Mo. 317, that, in specifying the same party for other causes.
causes for which a second new trial could The McShane Case, although followed, was only be granted to a party, the statute prodisapproved by two of the judges of the St. ceeds upon the supposition that the law has Louis court of appeals in the recent case of been correctly expounded to the jury, and the statute only applies to those cases in which undertook to cross the track immediately in this has been done.' If such statute only ap- front of the approaching train which caused plies to those cases in which the law has been her death, the evidence was conflicting, and properly expounded to the jury, it conclusively was properly for the consideration of the jury. follows that it cannot be applied to the first Barry v. Railroad Co., 98 Mo. 62, 11 S. W. 308; new trial granted defendant in 1877, because | Weber v. Railroad Co., 100 Mo. 195, 12 S. W. the demurrer to respondent's return admits the 804, and 13 S. W. 587; Roddy v. Railroad Co., fact therein stated, that such new trial was 104 Mo. 250, 15 S. W. 1112; Gratiot v. Railgranted on the sole ground that the law was way Co., 116 Mo. 452, 21 S. W. 1094. The evinot properly expounded by the court to the dence did not show such negligence on the jury. And from this it also necessarily fol- part of Mrs. Kreis as would have justified the lows that defendants have never had a new court in taking the case from the jury. If she trial granted them, within the meaning of such undertook to cross the track immediately in statute, and that the new trial which respond- front of the approaching train, and was killed, ent proposes to grant defendants, upon the she was guilty of contributory negligence, and grounds that the damages awarded by the jury the case would come within the rule announced on the second verdict were excessive, would in Yancey v. Railway Co., 93 Mo. 433, 6 S. W. be, in contemplation of said statute, the first 272, and Maxey V. Railway Co., 113 Mo. 1, new trial granted them.” So, in McFarland v. 20 S. W. 654, and preclude plaintiff's recovAssociation, 124 Mo. 222, 27 S. W. 436, Mac- ery; but that she did so is denied by plaintiff. farlane, J., in speaking for the court, said: In a recent case in this court, Bank v. Wood “We are asked to reverse the judgment on the (Mo.) 27 S. W. 554, Macfarlane, J., in speaking ground that the verdict was against the weight for the court, says: “When there is a subof the evidence on the question of giving the stantial conflict in the evidence, we should no notice of the death, and whether the death was more interfere with the action of the circuit the result of the accident. It must be admit- court in granting a new trial than we should, ted that the evidence in support of these is- in such case, interfere with the verdict which sues was very unsatisfactory, but it cannot be has been approved by that court." said that there was no substantial evidence at As the instructions presented the case very all in proof of these facts. In such case the fairly to the jury, and covered every feature of question is one for the determination of the it, as disclosed by the record, it follows that trial court, and this court will not, ordinarily, the motion for a new trial must have been interfere. Besides, it appears that one verdict sustained upon the ground of the insufficiency was set aside by the court for this reason, and of the evidence to support the verdict; and, its power to grant a new trial upon the same in sustaining the motion and granting a new ground was thereby, under the express pro- trial upon that ground, we are not prepared to vision of the statute, exhausted, and its refusal say that the court abused its discretion. The to do so is not reviewable by this court.” Our judgment is affirmed. conclusion is that a proper construction of the statute gives the trial court the right to grant
BRACE, C. J., and MACFARLANE and
ROBINSON, JJ., concur. SHERWOOD, J., to either party one new trial on the ground of the insufficiency of the evidence to support the
concurs in the first paragraph of the opinion, verdict of the jury, regardless of the number
but thinks the plaintiff not entitled to recover
under the evidence. BARCLAY and GANTT, of new trials that may have been granted to such party upon other grounds.
JJ., dissent. 2. The conduct of Mrs. Kreis in walking along so near the track of defendant's road, with an umbrella over her head, and so near
SNYDER v. CHICAGO, S. F. & C. RY. CO. the track as to be in danger of being struck by
(Supreme Court of Missouri, Division No. 1. a passing train, which she knew was then
Dec. 11, 1895.) past due, was negligence, but defendant's sery
MORTGAGES-FORECLOSURE-SALE-VALIDITY. ants and employes in charge of the train knew
1. Gen. St. 1865, p. 270, $ 69, provides that
school-fund mortgages shall be in the ordinary that pedestrians, in that vicinity, were in the form of a conveyance in fee, and shall contain habit of walking along between its tracks at a condition that, on default, the sheriff of the that point, and, if they either saw, or might county may, "without suit on the mortgage,' have seen by the exercise of ordinary care and
sell the mortgaged premises, and make an abso
lute conveyance thereof in fee to the purchaser, watchfulness, her perilous position in time to which shall be as effectual as if such sale and have checked the speed of the train, or if they conveyance was made by virtue of a judgment failed to use all necessary means at their com
of foreclosure. 2 Rev. St. 1879, § 7113, pro
vides that, when any sum secured by mortgage mand, after they saw her perilous position, to
containing a power to sell shall become due, prevent the accident, consistent with their duty the county court may order the sheriff to levy, to defendant, and the safety of the passengers
with costs, on the property conveyed by the and the property of the railway company, and
mortgage; and, a copy of such order duly cer
tified being delivered to the sheriff, it will have failed to do so, and because of such want of the effect of a fieri facias on a judgment of such care and watchfulness the train collided foreclosure by the circuit court, and shall be with and killed her, the defendant should be
proceeded with accordingly. Held, that where
à mortgage taken under section 69 contained all held liable. In regard to these matters, as
the essentials of such section, and gave the sherwell, also, as to whether or not Mrs. Kreis iff express power to foreclose in the manner