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 estate, 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.] 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, § 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 "It never has been held that a testimonium clause is necessary under this statute, or that the witnesses should be described as witnesses on the face of the will. Nothing more is required than that the will should be attested by the witnesses, i. e. that they should be present as witnesses, and see it signed by the testator, and that it should be subscribed by the witnesses in the presence of the testator, i. e. that they should subscribe their names upon the will in his presence." In the case of Fry's Will, 2 R. I. 88, there was no attestation clause other than the word "Witness." One of the subscribing witnesses having died, upon proof being made of the handwriting of the subscribing witness and of the testator, it was held to be prima facie evidence that all the requirements of the statute had been complied with. To the same effect is Jackson v. Christman, 4 Wend. 277. The evidence conclusively showed that the paper was drawn up by Enos Berberet, one of the sons of the testatrix, at her request; that she dictated it; that it was then explained to her by him; that she went to A. J. Steffen and asked him if he would sign her will and testament, and he told her that he would; that she then went off, and in about three weeks came again into his store and asked him to sign it; that she then went out and came back with Mr. Hirner, and signed the will in their presence,-she signing it first, Hirner next, and the witness last, all in the presence of each other. Joseph Hirner testified that she called on him, in his store, in the winter, and asked him if he would come up to Mr. Steffen and witness her will; that he told her, "All right," and went along with her; that, when they got there, she signed the will before witness and Mr. Steffen, and in their presence; and that they signed it in her presence and in the presence of each oth After the will was signed, she again took charge of it. All that was done in respect to procuring the signatures of the witnesses was done by the testatrix herself. She knew the character of the instrument, because she dictated it and requested the witnesses to witness it as her will. In addition to all this, she was single at the time of the execution of the instrument, over the requisite age, and of sound mind. We must, therefore, hold that the will was properly executed. Now, as to the instructions given by the court on behalf of the plaintiff. The first 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, even if there had been, it is vicious in that it tells the jury that, if they believe, from the facts admitted (to wit, that the writing in contest was written by Enos B. Berberet, one of the devisees, and he is also appointed executor in the will, that he is the son of the testatrix, and that she could not read English) and the other evidence in the cause, that he had great influence over the mind of his mother, and that advantage is given him by the terms of the will, then the burden was cast upon him to show that the will was fairly obtained, etc. The presumption is in favor of the validity of the will, and the fact of unjust discrimination in its provisions, if such be the case, and the other facts before stated did not shift the burden of establishing its validity on the defendant. There must have been undue influence exercised in the procurement of the will. McFadin v. Catron, 120 Mo. 252, 25 S. W. 506; Maddox v. Maddox, 114 Mo. 35, 21 S. W. 499. It is not enough that Enos B. Berberet had great influence over his mother, in respect of her business affairs alone, in order to shift the burden to him in explanation of such discrimination; but it must be shown that he procured the execution of the will by the exercise of such influence, and thereby gained an unfair advantage. A testator having sufficient mental capacity has the right "to make an unreasonable, unjust, injudicious will; and his neighbors have no right, sitting on a jury, to alter the disposition of his property simply because they may think the testator did not do justice to his family connection." Boylan v. Meeker, 15 N. J. Eq. 310, quoted with approval in Maddox v. Maddox, supra. See, also, Mackall v. Mackall, 135 U. S. 171, 10 Sup. Ct. 705, and cases cited; Smith v. Smith, 48 N. J. Eq. 591, 25 Atl. 11; Jackson v. Hardin, 83 Mo. 185; Farmer v. Farmer (Mo. Sup.) 31 S. W. 926. Mrs. Berberet was shown by the evidence to be a woman of more than ordinary intelligence and business capacity, and the execution of her will entirely free from fraud or undue influence. Not even a suspicion of fraud attended its procurement or execution; and to sustain the verdict of the jury, under the facts in proof as disclosed by the record, would be to, in effect, say that no person, however intelligent, however free from fraud or undue influence, could dispose of his property by will unless he do so according to the ideas of fairness and justice of some jury who may possibly have to pass on it after his death. The judgment is reversed, and the cause remanded, with directions to the court below to enter up judgment for the proponents of the will, defendants herein. GANTT, P. J., and SHERWOOD, J., con cur. KREIS v. MISSOURI PAC. RY. CO.1 (Supreme Court of Missouri. Dec. 10, 1895.) ACCIDENT ON RAILROAD-NEGLIGENCE - SECOND NEW TRIAL-REVIEW. 1. Rev. St. 1889, § 2241, providing that "only one new trial shall be allowed to either party, except: First, where the triors of the fact shall have erred in a matter of law; second, 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 new trial to a party for insufficiency of the evidence to support the verdict, however many new trials may have been granted him on other grounds. 2. That one going to a depot walked in the space on a double-tracked railroad, between the two tracks, with an umbrella over her head, so near one of the tracks as to be struck by a train coming back of her, does not show such negligence on her part as to justify the taking of the case from the jury, there being evidence that those in charge of the train knew that people were in the habit of walking between the tracks at that point, and that they did not use proper means to prevent the accident after they saw, or by ordinary care should have seen, her peril. Sherwood, J., dissenting. 3. Granting a new trial, where there is conflicting evidence as to negligence and contributory negligence, will not be disturbed. Barclay and Gantt, JJ., dissenting. In banc. Appeal from circuit court, Jefferson county; James F. Green, Judge. Action by John A. Kreis against the Missouri Pacific Railway Company. A new trial A new trial was granted defendant, and plaintiff appeals. Affirmed. Carlisle & Ottofy, for appellant. Martin L. Clardy, for respondent. BURGESS, J. The plaintiff appealed from an order of court setting aside the verdict of a jury and granting defendant a new trial. By the verdict plaintiff was awarded $5,000 for the death of his wife, Nellie I. Kreis, who was run over and killed by one of defendant's cars at or near its depot at Webster Groves, in St. Louis county, on the morning of April 19, 1891. The deceased left her home in Webster Groves, early in the morning, to take the train, by which she was killed, for the city of St. Louis. She lived in a northwesterly direction from the station, and had her election to go on a plank walk, extending some distance along the east side of defendant's right of way near to the depot, or enter upon the railroad right of way, as she and other persons in the neighborhood had been accustomed to do, and go down a path, which was between two railroad tracks, running east and west. The evidence was conflicting as to whether she entered upon defendant's right of way at what was called, by the witnesses. "Murphy's Crossing," or near to and east of the crossing. The distance from the station to this crossing is about 1,200 feet. Deceased had been a resident of Webster Groves for about 18 months, had frequently taken passage on the train by which she lost her life, was familiar with the track and surroundings, and knew the time of the arrival of the train, which was about 9 a. m., but, on the morning of the accident, was a few minutes late. On that morning it was misting rain. Mrs. Kreis had an umbrella over her right shoulder, and a basket of eggs in her left hand. She did not see the train before it struck her. The south track was used by trains en route to St. Louis, and the north track for those going west. There was a v.33s.w.no.1-5 switch or spur leaving the south track of the railroad about 400 feet east of Murphy's crossing, and it was near the head of this spur or switch that deceased approached near enough to the south track to be struck by the beam or deadwood of the engine attached to a train which was proceeding eastward at a speed of about 20 miles per hour, or in front of it, and was killed. The space between the two tracks was 8 feet 51⁄2 inches, and she was on this space all the time until the moment of the collision, when she stepped close to the rail, between two ties, or in front of the train. She was never on the railroad track, if at all, until just at the instant that she was struck by the train. Those in charge of the train had an unobstructed view of her for near 900 feet before it collided with her, while their evidence was that they did not discover her perilous position in time to check the speed of the train, in time to prevent the accident. As is usual in such cases, the evidence was conflicting as to whether any danger signals were given or not. On a former trial of the cause, a verdict in favor of plaintiff in the same amount, $5,000, was set aside on motion of defendant, and a new trial granted, on the ground that the court permitted the introduction of improper testimony, and gave improper instructions to the jury. The right of the plaintiff to appeal from the order sustaining defendant's motion and granting a new trial is not questioned, but it is insisted by plaintiff that the new trial was improvidently granted, because there was no error of law committed during the trial of the cause prejudicial to the defendant, and, one new trial having been granted to it, the court had no power to grant it another new trial because of the insufficiency of the evidence to support the verdict. 1. By section 2241, Rev. St., it is provided that "every order allowing a new trial shall specify of record the ground or grounds on which the new trial is granted." The ground upon which the order granting the new trial from which plaintiff appealed is not specified of record. While the court, in sustaining the motion and granting the new trial, rendered a written opinion, giving his reasons therefor, it was not spread upon the record of the court, but merely filed with the papers in the cause, which did not make it a part of the record. Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440. There were numerous causes assigned why a new trial should be granted, as set forth in the motion, and if the action of the court in granting it can be sustained upon any one or more of the grounds assigned, it is the duty of this court to do so. Hewitt v. Steele, supra; Bank v. Wood (Mo.) 27 S. W. 554. (Mo.) 27 S. W. 554. A careful examination of the evidence as disclosed by the record, as well, also, as of the instructions given and refused, has satisfied us that there were but two grounds assigned in the motion upon which the action of the court can possibly be upheld: First, the insufficiency of the evidence; second, the refusal of the sixth instruction asked by defendant. With respect of the first proposition, it is insisted by counsel for plaintiff that, as one new trial had already been granted defendant, on the ground that the court permitted the introduction of improper testimony and gave improper instructions, the court had no power to grant defendant another new trial on the ground of the insufficiency of the evidence, and that its action in granting the second new trial cannot be sustained upon that ground. McShane v. Sanderson, 108 Mo. 316, 18 S. W. 912, is relied upon as sustaining that contention. While it may be conceded that that case seems to hold that, where one verdict has been set aside and a new trial granted for any cause, another new trial cannot be granted to the same party on the ground that the evidence is insufficient to support the verdict, or that the verdict is the result of bias, it must be considered with respect to the facts upon which it was decided; and, when this is done, we submit that what was said with respect to the matter now under consideration was not necessary to a decision of that case. In that case, one new trial had been granted plaintiff on the ground that the verdict was against the weight of the evidence. Another trial was had, resulting in a verdict in favor of the plaintiff, as did the former trial, and, on motion being filed by plaintiff for a second new trial on the ground that the verdict was against the evidence, the court refused to entertain it, for the reason that one new trial had theretofore been granted plaintiff on the same ground; and, upon this state of facts, it was said, "one new trial having been granted to a party, no matter for what reason, the power to award that party other new trials is exhausted, except for some of the causes before mentioned," i. e. for prejudicial errors committed by the court, when the triors of fact have erred in a matter of law, or when the jury shall be guilty of misbehavior. We submit that what was said in the language quoted was not necessary to a decision of that case, and is in conflict with the plain letter and meaning of section 2241, Rev. St. 1889, which provides that: "Only one new trial shall be allowed to either party, except: First, where the triors of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior." When the statute says "only one new trial shall be allowed to either party, except," it clearly means that one new trial may be granted to either party, for any cause, except such as come within the first and second exceptions of that section, and the section next preceding it, and that one new trial may be granted to either party on the ground of the insufficiency of the evidence to support the verdict, although there may have been other new trials granted the same party for other causes. The McShane Case, although followed, was disapproved by two of the judges of the St. Louis court of appeals in the recent case of | O'Neil v. Young, 58 Mo. App. 628, and is criticised by Rombauer, P. J., in a separate opinion, as follows: "That case seems to hold that the power of the court to grant even one new trial, on the ground that the verdict is opposed to the weight of the evidence, or the result of bias, depends upon the fact whether the verdict is the first or second verdict in the case. If it is the first verdict, the court may grant a new trial; but, if it is the second verdict, the court is powerless to do so, even though the first verdict was obtained in disregard of all law, or for the grossest misbehavior of the jury, and hence, in contemplation of law, was no legal verdict at all, if properly challenged. This distinction, which makes the discretionary power of the court dependent upon the mathematical position of its errors, strikes me as logically unsound. Statutes should receive a rational construction, if they admit of it. Why should a verdict, which is utterly untenable when properly challenged, be counted if it is the first verdict in the case, and yet not be counted when it is the second verdict? Why should the discretionary power of the court to grant one new trial on the ground that the verdict is opposed to the weight of the evidence be abrogated, simply because the jury were misdirected by the court on a former trial? A literal reading of the statute, it seems to me, calls for no such construction." State v. Horner, 86 Mo. 71, was a proceeding by mandamus to compel the judge of the circuit court to enter up judgment on a verdict rendered in the court of which he was judge. A former verdict in the same cause had been set aside on the ground that erroneous instructions had been given. A verdict was rendered on the second trial for $3,500, which defendants moved to set aside on the ground that the verdict was against the evidence, being excessive. In passing upon the statute now under consideration, the court said: "We are of the opinion that this statute puts no limit to the number of new trials a circuit judge may grant either party, when the new trials are granted on account of errors committed by him in giving or refusing instruction, or in admitting or rejecting evidence. Nor does it put any limit upon the number of new trials he may grant when the jury err, either in a matter of law or where they are guilty of misbehavior. *** It is clear, we think, that the said statute, invoked by relators, was only intended to interdict the granting of a second new trial to the same party in a case where such party has had one new trial granted to him on other grounds than the error committed by the court in the progress of the trial, or on other grounds than that the jury erred in a matter of law or had been guilty of misbehavior. In speaking of said statute, it was observed by Judge Scott, in the case of Boyce v. Smith, 16 Mo. 317, that, 'in specifying the causes for which a second new trial could only be granted to a party, the statute proceeds upon the supposition that the law has been correctly expounded to the jury, and the statute only applies to those cases in which this has been done.' If such statute only applies to those cases in which the law has been properly expounded to the jury, it conclusively follows that it cannot be applied to the first new trial granted defendant in 1877, because the demurrer to respondent's return admits the fact therein stated, that such new trial was granted on the sole ground that the law was not properly expounded by the court to the jury. And from this it also necessarily follows that defendants have never had a new trial granted them, within the meaning of such statute, and that the new trial which respondent proposes to grant defendants, upon the grounds that the damages awarded by the jury on the second verdict were excessive, would be, in contemplation of said statute, the first new trial granted them." So, in McFarland v. Association, 124 Mo. 222, 27 S. W. 436, Macfarlane, J., in speaking for the court, said: "We are asked to reverse the judgment on the ground that the verdict was against the weight of the evidence on the question of giving the notice of the death, and whether the death was the result of the accident. It must be admitted that the evidence in support of these issues was very unsatisfactory, but it cannot be said that there was no substantial evidence at all in proof of these facts. In such case the question is one for the determination of the trial court, and this court will not, ordinarily, interfere. Besides, it appears that one verdict was set aside by the court for this reason, and its power to grant a new trial upon the same ground was thereby, under the express provision of the statute, exhausted, and its refusal to do so is not reviewable by this court." Our conclusion is that a proper construction of the statute gives the trial court the right to grant to either party one new trial on the ground of the insufficiency of the evidence to support the verdict of the jury, regardless of the number of new trials that may have been granted to such party upon other grounds. 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 the track as to be in danger of being struck by a passing train, which she knew was then past due, was negligence, but defendant's servants and employes in charge of the train knew that pedestrians, in that vicinity, were in the habit of walking along between its tracks at that point, and, if they either saw, or might have seen by the exercise of ordinary care and watchfulness, her perilous position in time to have checked the speed of the train, or if they failed to use all necessary means at their command, after they saw her perilous position, to prevent the accident, consistent with their duty to defendant, and the safety of the passengers and the property of the railway company, and failed to do so, and because of such want of such care and watchfulness the train collided with and killed her, the defendant should be held liable. In regard to these matters, as well, also, as to whether or not Mrs. Kreis undertook to cross the track immediately in front of the approaching train which caused her death, the evidence was conflicting, and was properly for the consideration of the jury. Barry v. Railroad Co., 98 Mo. 62, 11 S. W. 308; Weber v. Railroad Co., 100 Mo. 195, 12 S. W. 804, and 13 S. W. 587; Roddy v. Railroad Co., 104 Mo. 250, 15 S. W. 1112; Gratiot v. Railway Co., 116 Mo. 452, 21 S. W. 1094. The evidence did not show such negligence on the part of Mrs. Kreis as would have justified the court in taking the case from the jury. If she undertook to cross the track immediately in front of the approaching train, and was killed, she was guilty of contributory negligence, and the case would come within the rule announced in Yancey v. Railway Co., 93 Mo. 433, 6 S. W. 272, and Maxey v. Railway Co., 113 Mo. 1, 20 S. W. 654, and preclude plaintiff's recovery; but that she did so is denied by plaintiff. In a recent case in this court, Bank v. Wood (Mo.) 27 S. W. 554, Macfarlane, J., in speaking for the court, says: "When there is a substantial conflict in the evidence, we should no more interfere with the action of the circuit court in granting a new trial than we should, in such case, interfere with the verdict which has been approved by that court." As the instructions presented the case very fairly to the jury, and covered every feature of it, as disclosed by the record, it follows that the motion for a new trial must have been sustained upon the ground of the insufficiency of the evidence to support the verdict; and, in sustaining the motion and granting a new trial upon that ground, we are not prepared to say that the court abused its discretion. judgment is affirmed. The BRACE, C. J., and MACFARLANE and ROBINSON, JJ., concur. SHERWOOD, J., concurs in the first paragraph of the opinion, but thinks the plaintiff not entitled to recover under the evidence. BARCLAY and GANTT, JJ., dissent. SNYDER v. CHICAGO, S. F. & C. RY. CO. 1. Gen. St. 1865, p. 270, § 69, provides that school-fund mortgages shall be in the ordinary form of a conveyance in fee, and shall contain a condition that, on default, the sheriff of the county may, "without suit on the mortgage," sell the mortgaged premises, and make an absolute conveyance thereof in fee to the purchaser, which shall be as effectual as if such sale and conveyance was made by virtue of a judgment of foreclosure. 2 Rev. St. 1879, § 7113, provides that, when any sum secured by mortgage containing a power to sell shall become due, the county court may order the sheriff to levy, with costs, on the property conveyed by the mortgage; and, a copy of such order duly certified being delivered to the sheriff, it will have the effect of a fieri facias on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly. Held, that where a mortgage taken under section 69 contained all the essentials of such section, and gave the sheriff express power to foreclose in the manner |