Griffin v. Nicholas

123 S.W. 1063, 224 Mo. 275, 1909 Mo. LEXIS 15

• Court: Supreme Court of Missouri
• Decided: December 21, 1909
• Status: Published

Opinions

VALLIANT, C. J.

The petition in this cause is aimed to come under section 650, Revised Statutes 1899, and prays to have the title to two certain lots in the city of Carthage adjudged and quieted; it states that plaintiffs are the owners of the lots, deriving their title under the will of W. L. Burlingame, deceased; that defendants are in possession and claim title under a deed from Rosanna Burlingame which is a cloud on plaintiffs ’ title.

The answer of defendants admits that they are in possession and asserts that they hold title under a deed duly executed by Rose (idem Rosanna) Burlingameand sets out the terms of the will under which it avers that Mrs. Burlingame had power to make the deed, that is, that the testator by his will gave his whole estate to his wife, Rose Burlingame, for life, with power to sell and dispose of the same for her necessary comfort and support; that Mrs. Burlingame was an invalid requiring very arduous labor and care; that defendant Ellen Nicholas was the sister of Mrs. Burlingame; that the deed was made in consideration that Mrs. Nicholas and her husband would nurse and take care of Mrs. Burlin-game during her life, the deed to become void should they fail to do so; that they performed the required conditions during the life of Mrs. Burlingame and the title thereby became indefeasible. The answer also avers that in 1902 Mrs. Burlingame was brought from her home in Carthage to the home of defendants on their farm in Vernon county, in a very distressed and helpless condition, .requiring extraordinary attentions specified; that she remained with them on their farm until September of that year, and. begged the defendants to sell their farm and take her back to Carthage and live with and take care of her, nurse and protect her during her life, and proposed to them if they would do so to execute the deed in question; that they did agree to do so, sold their farm, took her back to Carthage and rendered the required service to her during her life. Then the answer goes on to say that after the death of Mrs. Burlingame the defendants made certain valuable and permanent improvements, paid taxes, etc., and if their deed is to be set aside they pray that an account of their improvements, etc., may be taken and the amounts so ascertained be charged as a lien on the property in question.

The reply filed by plaintiffs admits the due execution and recording of the deed, but avers that at the time of its execution Mrs. Burlingame was “sick and feeble in body and mind” and defendants were her confidential advisers and nurses and took advantage of her enfeebled condition and induced her to believe that it was necessary for her to make the deed in order to “provide for her necessary comfort and support,” while in truth she was otherwise well provided for and had an income abundantly sufficient for that purpose.

The reply asserts that the clause in the will giving the power to Mrs. Burlingame to sell and dispose of the property was limited to her life estate, that is, that the will meant that she could sell her-life estate only. Tin reply also avers that during the lifetime of Mrs. Burlin-game, during a period of about three years and while she was under the care of defendants, she spent about $6,000 for the support of the defendants and herself; that at her death all her personal property passed into the hands of defendants, and in that way “they have been well and fully paid for nursing and earing for the. said Rose Burlingame.” That if defendants have made any improvements the same were paid for out of the estate of W. L. Burlingame, deceased, and plaintiffs had •no knowledge of any improvement. ‘‘ That at and prior to the time the defendants and Bose Burlingame entered into the contract and executed the deed referred to in defendants’ cross-bill herein the said Bose Burlin-game had sold a large amount of real property belonging to the estate of W. L. Burlingame and that she had realized therefor from $3,000' to $3,500 in cash, and that the remainder of the real property belonging to the estate was rented for about $125 per month, and that at said time said Bose Burlingame was sixty-six years old and that the income from said property and cash aforesaid was more than sufficient to provide for her then existing and prospective wants necessary for her comfort and support.” That even if she had the power to sell, it was her duty to have exhausted the rents and cash before doing so and in violating that' duty she perpetrated a fraud on the plaintiffs and the defendants participated in the fraud. That the deed was not made in good faith, but to cheat and defraud the plaintiffs. That Ann Kendrick, to whom the will gives a life estate in the property after the death of Mrs. Burlingame, is alive and should be made a party to- the suit. The pleadings are long and full of detail, but their substance is as above stated. The following is a copy of the' material part of the will under which both parties claim.

‘ ‘ Second: I give and bequeath all the balance and residue of my estate to my wife, Rosanna Burlingame, to have and to hold and enjoy for and during her natural life, with full power to make such disposition thereof as may be necessary for ber own comfort and support.

“Third: After the death of my wife then all my estate is hereby willed to Ann Kendrick to have and to hold during her natural life, but with no power to sell or dispose of any real estate.

“Fourth: After the death of the said Ann Kendrick or if she shall die before I die, then all the balance and residue of my estate I hereby will to my nieces, Florence Griffin and Birdie Huling.

“Fifth: I hereby name and appoint my wife executrix of this my will, and it is my desire that she be permitted to qualify and administer on my estate without bond.”

The plaintiffs are one of the nieces mentioned in the will and an infant child of the other niece who has died since the death of the testator and they sue as re-maindermen under the will. Both plaintiffs are residents of Michigan, the infant plaintiff is represented by one Edward C. Griffin who styles himself “guardian and curator duly appointed by the probate court of Kent county, Michigan ” if he has any authority from any court in this state to represent the minor it is not stated in the pleadings.

There was a judgment for defendants- declaring the title to the property in question fully vested in defendant Ellen Nicholas; from that judgment the plaintiffs appeal.

Over the objection of plaintiffs the defendants were permitted to testify in proof of the contract alleged in the answer to have been made while Mrs. Burlingame was on defendants’ farm in Yernon county, pursuant to which the deed was made, and the acts of defendant in compliance with that contract and the performance of the conditions required by the deed. The objection was that Mrs. Burlingame, one of' the parties to the contract, being dead, the other parties are disqualified as witnesses to prove the contract.

Section 4652, Bevised Statutes 1899, first removes the common law disability which, disqualified a witness on account of bis interest in the suit, then it excepts from those whom that statute, without the exception, would render qualified, a party to a contract in issue and on trial when the other party was dead. The language is: “Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify in his own favor,” etc. A contract in issue within the meaning of the statute is one in dispute and as to which there must be a finding, and on which finding the judgment in whole or in part is to rest or it must be in itself the subject of the cause of action on trial. This contract (we are not speaking now of the deed) was not in issue nor was it the cause of action. The plaintiffs are not seeking to have the contract vacated or set aside for any cause, they are assailing the deed, and defendants are not asking to have the contract enforced or performed ; according to their contention it has been fully performed on the part of Mrs. Burlingame by executing the deed, and they are relying on the deed and on the power given her in the will to execute it. If she had power under the will to execute the deed for the consideration therein expressed, the contract made at the farm is immaterial, and if she had not such power that contract could not have given it to her. Besides, the reply admits the contract and seeks to avoid it on the ground that it was unnecessary for her comfort and support. The answer of defendants pleads with detail 4he contract made at the farm and the deed afterwards executed in pursuance thereof, and the reply says ‘ ‘ that at and prior to the time the defendants and the said Bose Burlingame entered into the contract and executed the deed referred to in defendants’ cross-bill the said Bose Burlingame had sold a large amount of real property,” etc. The contract was a mere inducement or circumstance leading up to the deed. If Mrs. Burlin-game had refused to execute the deed she could not by force of that contract have been compelled to do so, because the execution of the deed under the terms of the will rested in her discretion; if she had refused, she might perhaps have been liable to an action for damages as for a breach of the contract, but could not be required to make specific performance of it. If Mrs. Burlingame had refused to make the deed and an action for damages, as for a breach of contract, had been instituted against her or her administrator, then the contract would be in issue and on trial, and if the suit were against her administrator the defendants would be incompetent to testify. But that is not the case. There was really more importance attached to the contract than it deserved; if it bore on any issue in the esse it was on the charge of fraud made in plaintiffs’ reply. If defendants yielded to persuasion of Mrs. Burlingame, gave up their home, sold their farm at a sacrifice to accept her proposal, it was evidence tending to disprove the charge of fraud, but even in that respect it would have been important only if the plaintiffs had introduced any evidence tending to show fraud committed by these defendants, as to which we will see later.

It is complained, also, that the defendants were permitted to give testimony going to show the extent and character of their services rendered to Mrs. Burlin-game as a consideration for the deed. Going back to the pleadings we find that the plaintiffs in their reply admit “that the said Rose Burlingame signed and acknowledged a deed purporting to convey the real estate in controversy to the defendant, Ellen Nicholas, and that the said deed is recorded in Deed Record 186, page 171, of the records of Jasper County in the Recorder’s Office.” Having specifically admitted the execution of tlie deed the plaintiffs in their reply proceed to attack it on three grounds: first, that the defendants were her confidential advisers and nurses, and took advantage of her weak and feeble condition of mind and body and induced her to execute the deed by encouraging .her to believe that it was necessary for her to do so in order to provide for her necessary comfort and support; second, that the will gave her power to dispose only of her life estate; third, that by large sums of money expended by Mrs. Burlingame during her lifetime for he.r support and that of the defendants, and by her personal property that passed into defendants’ hands after her death, the defendants “have been well and fully paid for nursing and caring for said Rose Burlingame,” etc. Thus we see the plaintiffs do not attack the deed on the ground that defendants failed to perform the services which it is specified in the deed are to be performed in consideration of the conveyance, and for the failure to perform which the deed was to become void, but on the contrary they admit that defendants nursed and cared for Mrs. Burlingame, but that they have been well paid for it. It was entirely proper to show the condition of Mrs. Burlin-game to show the character of the services she required, so as to show a consideration moving her to execute the deed, but it was not necessary under the pleadings to - prove that the defendants performed that service, the reply admits it.

Besides, there was entirely sufficient evidence of other witnesses to show that the defendants faithfully did what under the deed they were required to do, and as this is an equity case we can discard illegal evidence if any and weigh that which is legal.

We say this is an equity ease, by which we do not wish to be understood as deciding that the statutory proceeding under section 650 is an equity proceeding, on that point we say nothing, but this case, although the petition may have been designed to’come under that section, has by tbe pleadings subsequent to tbe petition been converted into a suit in equity to set aside a deed on tbe grounds of fraud and incapacity to convey and to remove it from tbe record as a cloud on tbe plaintiffs’ title. Even therefore if defendants were not competent witnesses (which we do not say) their testimony may be entirely cast aside without affecting the merits of the case.

II. The second ground on which the deed is assailed is that the will gave power to Mrs. Burlingame to sell only her life estate if it became necessary for her comfort and support. We do not deem it necessary to consume much time on that point. The language of the will, after first providing for the payment of his debts, is: “I give and bequeath all the balance and residue of my estate to my wife, Rosanna Burlin-game, to have and to hold and enjoy for and during her natural life, with full power to make such disposition thereof as may be necessary for her own comfort and support.” The word “thereof” means, of that, and the word “that” is a demonstrative pronoun referring to “estate” as its antecedent. The power given is to make such disposition of the estate, that is, all the estate, as may be necessary for her own comfort and support. His wife was the first and chief object of his bounty, he placed all the estate at her disposal “for her own comfort and support,” after her came the testator ’s sister to whom a life estate was given but no power óf disposal, and after her came the more remote nieces to take what was left. The purpose to give his wife a life estate after his death is no more clearly expressed than is the purpose to give his sister a life estate after his wife’s death, but to the one was given the power of disposal, to the other not. But if the power given to' the wife was only to sell her life estate she was no better off with her life estate than the sister was with he.rs, for either could sell her life estate without the power given. The words conferring the power would be idle if they only meant that she could sell her life estate. [Boyer v. Allen, 76 Mo. 498.]

III. The remaining grounds on which plaintiffs attack the deed are, first, that the defendants being the confidential advisers and nurses of Mrs. Burlingame and she being feeble in mind and body, they took advantage of her and induced her to execute the deed by encouraging her to believe that it was necessary to do so to provide for her necessary comfort and support, and, second, it was not necessary to convey this property for that purpose because she already had enough money for her comfort and support, hence the deed was a fraud committed by her on plaintiffs, and defendants participated in the fraud.

There is no dispute in the evidence as to the condition of Mrs. Burlingame. It was very distressing and it is unnecessary to say more than that the services she required were not only arduous and unremitting, but of a delicate nature. We gather from the record that she was a lady of refinement and education. There was no direct evidence on that subject, but the general tone of all the witnesses gives that impression and even the letters introduced in evidence by plaintiffs, which we will presently see, show that she was not deficient in mind or education. The evidence shows that her distressing condition existed before her husband’s death and that while he lived he, with the assistance of a hired servant, rendered her the services she required. After his death, which ‘occurred in December, 1901, the servant remained several months and then she broke down, declaring her inability longer to render the service required, and at her request in July, 1902, took her to her sister’s, Mrs. Nicholas, one of the defendants in this case, who at that time was living with her husband, the other defendant, on his farm in Yernon county. The testimony of Mrs. Jackson, the servant above mentioned, is to tbe effect that while Mrs. Burlingame was staying at the farm she and Mrs. Nicholas came to her three times and tried to persuade her to return and renew her service, hut she refused because the service was too hard. On one of these visits to her Mrs. Nicholas said that she would not go to take care of Mrs. Burlingame and urged the witness to do so. She heard Mrs. Burlingame say to Mrs. Nicholas that if she would come and take care of her she would give her this property.

There was testimony to the effect that the Nicholas farm was worth $3,500; that they sold it for $2,200, and returned to Carthage with Mrs. Burlingame in September, 1902, and from that time until her death nursed and took care of her; the deed in question was executed January 15,1903. The deed was written by and executed under the supervision of a reputable lawyer in Carthage who testified that he acted at the request and under the direction of Mrs. Burlingame. It was recorded October 5, 1904. The deed in due form conveys the lots in question to Ellen Nicholas, it recites that it is made in the execution of the power given by the will of "W. L. Burlingame, deceased, and it recites the consideration as follows:

“This conveyance is made on the further consideration, that, whereas, the party of the first part is an invalid, having lost the use of her lower limbs, and being unable to walk or to take care of herself in any wise, and has to be cared for and nursed, and has to be taken about the house in her wheel chair, and when necessary for her to get out and get the air and sunshine has to be wheeled about by some person, and, whereas, she is unable to procure the services of any strangers and she desires the service, care and attention of her sister, the party of the second part, and of her sister’s husband, Thomas R. Nicholas, and said care nursing, personal attention and service is necessary for her comfort and support: Now, therefore, the said party of the second part and Thomas R. Nicholas husband of the party of the second part, in consideration of the making and delivery of this conveyance to the party of the second part, hereby agree and bind themselves to constantly from this date, during the life of the party of the first part, to live with, nurse, care for and in every way administer to the care and comfort of the party of the first part, without any charge therefor other than this conveyance. And it is hereby expressly provided that in case said party of the second part and her said husband should abandon the care, attention and service of the party of the first part as above designated, then this conveyance shall be void at the option of the party of the first part.

“But in case the said party of the second part and her said husband, nurses, cares for and administers to the wants and comfort of the party of the first part during her life, then this deed to be and remain in full force and effect. And the party of the second part and her said husband by the acceptance of this conveyance by the party of the second part shall be held and firmly bound by the conditions herein expressed.”

At the time of his death Mr. Burlingame owned besides the two lots in controversy, 144 acres of Jasper county land, lot 3 in Fairview Addition, and a half interest in an opera house in Carthage, and he had in bank $1097.11. After the death of Mr. Burlingame the opéra: house rented for $135 and afterwards for $140 a month, one half of which, less expenses for repairs, was paid to Mrs. Burlingame. There were some improvements made on the opera house which cost about $500, which was deducted from the rents, and there were also from time to time various repairs, the exact items of which the witness who had the business in charge, and who was plaintiffs ’ witness, did not recollect exactly, but he remembered an item of $60, one of $12 and one of $7.50; he testified that Mrs. Burlin-game paid her half of the taxes. The value of the opera house property was $24,000, the Burlingame half $12,000.

There was conflict in the testimony of the witnesses on the subject of the value of the property in suit; the witnesses for defendants estimated it as worth $3,500 to $4,000, those for the plaintiffs from $6,000 to $8,000.

The following letters written by Mrs. Burlingame' about two or three months after the death of her husband were read in evidence over the objection of defendants,, who objected on the ground that as to them they were mere hearsay. Plaintiffs appear to attach so much importance to these letters that we copy them in full:

Feb. 18-02.

“Dear Florence and Bertha:

“I am going to ask a favor of you both, and your husbands, which may seem strange to you all. But Florence you know Aunt Bose well enough to know she will not ask anything that is not right and just, and it will be to both of your good and to your advantage after while. I want to send you a paper or papers to sign, and I want the signatures of you two girls and your husbands, and I will send them so you can sign them and not know the contents contained within. Now when you answer this tell me whether you will or not. Make it plain yes or no, and do as you think best. If you say yes, I know it will be done, but remember it is optional with you. I will give you my word and honor it is all right.

“Answer soon, Yours in haste,

“Aunt Bose.”

“Dear Florence and Bertha:

Now as for signing those papers without seeing them, it can’t be done and I was aware of it all the time. It was a freak of mine just to see what you would say. Such a thing would not he lawful, hut laying all jokes aside I have some that I would like to have you and your husbands sign, if you will. And now I will tell you what it is and how it was to be. Last May, the 16th, your Uncle Lee made a will, and when he came home to his dinner he was late, and I said to him Lee what kept you so late, and he said Rose don’t scold, I had my will made. I said how is it? After we had sat down to the table he told me just how it was and Mrs. Porter, the lady we boarded with, sat there too and heard him tell me how it was. She thought it was •so nice in your Uncle Lee to remember his sister and you girls. But after his death I find in the wording of it is so I have to go before the court and swear that it is for my comfort and support, and that takes off the profits. The farm is one thing that I should like to sell. It has not paid repairs and taxes since we have owned it. Lee had two or three trying to sell it before he died. Now his will was this way, or should have been: “Every thing to my beloved wife during her life, after her death the income of the property to my sister Ann. She has no right to dispose of the property in any way. After her death it is to be divided between Florence and Birdie — he should have said Bertha. The old opera house building is what brings in the most of all, and that I shall not dispose of. Am having a new French Plate front put in it now. Lee had made arrangements for it before he died.. Now Florence, what I want is to have you and your husband, Bertha and her husband sign the papers that I shall mail to you this afternoon. By so doing I will be under everlasting obligations to you all, and it will be a happy day for all concerned. I was so glad when I read that you were willing. It will save me so much trouble, and Florence, I have all I can bear now. Uncle Lee’s death nearly killed me, and then, added to that, having to stay in my wheel chair is not the pleasantest thing in the world. Bnt that I have to pnt np with. The other through yonr kindness and Bertha’s and yonr husband’s can he righted, and I am thankful that you are willing to help make Aunt Rose as happy as possible the rest of her life. This in much love to all,

“Aunt Rose,.

“Inclosed find dollar for expenses. Wednesday, Feb. the 26th, 1902.

“South Lyon St. No. 720, Carthage, Mo.

“P. S. Florence, if your father don’t know of this keep it from him if you can, please.

“Inclosed find dollar for expenses. You will have to go before a Notary Public to sign the papers to make them lawful.

“P. S. Florence, in your last letter you wondered how I could give you the piece of music entitled ‘ Nearer My God to Thee ’ when I had given it away. It was this way: When sister Ellen was here after .Lee’s death and burial, when she went home, I sent it home with her to give to her grand daughter, and she had not sent it yet to her, and she sent it to you from Nevada, and the piece, ‘There is Room in my Heart for Thee,’ I had her take home and put with it. The title was pretty, and I thought maybe the tune would be pretty, also. I hope there is room in your heart for me.

“Rose.

“Florence please let Bird read all of my hen scratching. It is so hard for me to write. ’ ’

The papers sent with these letters were drafts of quitclaim deeds to the farm land and the lots in Carthage including the lots in suit, but not including the opera house. Awaiting the return of those papers Mrs. Burlingame wrote March 15, 1902, as follows:

“Dear Florence:

“It strikes me that it is time those papers were coming back. They have been gone most three weeks. Now use your pleasure about signing them.. Do as you think best. I think you regret your offer or you would be more prompt. My troubles seem to come thick and fast. The only brother I have left is laying at the point of death — Brother William that lives at Rich Hill, Mo. There'is only three of us left, brother Will, sister Ellen and myself, and if I had the use of my limbs I would be worth more than all of them. My general health was never better. Things look a little dark just at present, but they will come out all right after awhile. I will surprise you all. Plope this will find you all well. Grive my love to Bertha. Send the papers back, and write me. You will hear from me again soon. May have something to tell you. Scribbled in a hurry. With love to all.

“Rose.

“Saturday, March 15th, 1902.”

And on March 22 and 24, 1902 she wrote the following letter:

“Carthage, March, 24.

“Well, Florence, I received the paper and the dollar. Many thanks. ■ You wanted to know if I remembered those pretty brown shoes that we gave you when you were with us. Yes, and the thing that we brought to you after Bessie’s death, and how we stopped in St. Louis and got things for you, and the satchel you brought your clothes in, and the trunk you took, them home in — so full that Uncle Lee could hardly lock it. Then when I asked a favor of you and Bertha, how you granted it. As it has turned out I am sorry that I asked either of you or his sister, for it has hurt me more than anything that ever happened except Lee’s death. If I had asked anything detrimental to any of you. it would have been different, but I did not. But thanks be to God, every thing is all right. Don’t have to ask any odds of any one. It was very strange that your refusal and his sister’s were worded just the same, only you used the word Uncle Lee and she used the word Brother. I forget whether she said Lee or Will. But aside from that they were worded just the same. Some of you must be mind readers. Well, Florence, enough of this. Make the most of this for it will he a long time before you will get another. I had ordered Uncle Lee a monument. It was to be-$300.00, hut have countermanded it and have ordered him a Thousand Dollar one. I know you will he delighted. I came pretty near forgetting to tell you.

“Now Florence, after your Aunt Ann and myself are gone you and Bertha will get what is left, but don’t you think for a minute that I will he at all saving to keep it for either of you after the way you have treated me.

“Mrs. Eose BtjeliNgame,

“Carthage, March 24.

“Well, this is Monday morning. I commenced your letter Saturday, and thought to send it out, hut found I had used all my envelopes, so had to wait until this morning before sending it. The Ladies of the Grace Church Guild are fitting up the church, fresco-ing the walls, putting down a velvet carpet. Your unworthy friend donated to it liberally, and am going to give a beautiful brass chandilear in Lee’s memory. It will hang from the center isle. Am using the money that I was going to send to your Aunt Ann; hut she won’t care. She likes to see the good work go on. She is a good Christian, and she won’t mind waiting for it. I thought I would let you know that I am doing a good work with it. There may not he just as much left as there would have been, but no one helped us earn it, or gave us anything to help us out, and I feel that I have a right to do as I see fit with it, and am doing so to my heart’s content. This is all.

‘ ‘ Farewell. ’ ’

Shortly after that correspondence Mrs. Burlin-game instituted a suit in the circuit court of Jasper county against these plaintiffs and Mrs. Kendrick, re-maindermen under the will, stating the provisions of the will and alleging that a sale of the farm land and of lot 3 in the Fairview Addition was necessary for her comfort and support and prayed a decree authorizing the sale, and a decree was rendered as prayed, in pursuance of which she sold the farm lands and the lot, realizing $2,592.50 for the farm lands, and a surrey worth $125 for the lot. The evidence shows that the reason fox going into court for this decree was that the prospective purchaser would not purchase unless a court should decree a sale on the ground that it was necessary for her comfort and support. Those letters and that suit and the sale were in the early part of the year 1902 and before Mrs. Burlingame went to the Vernon county farm to seek the care and attention she needed from her sister, Mrs. Nicholas. It was in September, 1902, that the Nicholases attended Mrs. Burlingame hack to Carthage and began their ministration. Until the deed in question was made January, 1903, Mrs. Burlingame paid the household expenses, and that is all that the evidence shows to sustain the allegation that she expended $6,000 in supporting herself and the defendants; after the execution of the deed the Nicholases paid the household expenses. During the lifetime of Mr. Burlingame the family lived in what the witnesses called the Lyon Street house, and the widow and the Nicholases lived there until the Spring of 1903, when the Main Street house, which had up to that time been rented, became vacant, and they moved into it and lived there until the death of Mrs. Burlin game. But the house was badly out of repair and before moving into it was repaired, with, a new roof, etc., and in making the repairs Mrs. Burlingame expended about $1,100.

Defendants introduced in evidence the final settlement of Mrs. Burlingame as executrix of her husband’s estate, which showed a balance in her favor of $802.20; it also showed that the amount she paid for the monument referred to in one of the letters was $255. Plaintiffs introduced the will of Mrs. Burlin-game, which, after requiring her debts to be paid, was: “I devise and bequeath to my beloved sister Ellen Nicholas all the rest and residue of my property real, personal and mixed, wherever situated.” Her estate consisted in her personal belongings, jeAvelry, etc., and about $500 in money.

Let us now consider the charges of fraud, which the plaintiffs make, in the light of this evidence.

1. First, that the defendants were the confidential advisers and nurses of Mrs. Burlingame and took advantage of her weak, feeble condition of mind and body and thus induced her to make the deed by making her believe that it was necessary to her comfort and support. There is no evidence whatever to sustain that charge unless it be the mere fact that these defendants were the nurses of the invalid and unless for that reason the burden of proving that she was not imposed on is on them. If the burden was on them they have’ fully discharged it. The evidence shows that Mrs. Burlingame was a helpless invalid in body, but there was no hint from any one that she was weak or feeble in mind, as the reply charges. .Plaintiffs themselves negative that idea; in their brief they charge that this was a scheme of Mrs. Burlingame herself, beginning with her letters two months after the death of her husband (of which the defendants had no knowledge) and continuing through her whole administration. In their brief the plaintiffs say: “The evidence seems to be conclusive that Mrs. Burlingame ruthlessly planned to despoil her husband’s relations of their legacies; and it is hardly less certain that these defendants were cognizant of that intent and that they co-operated with Mrs. Burlingame unreservedly in carrying out the same.” In other words, that it was her wicked plan and these defendants helped her execute it.

Again in their brief they say: “On February 19th, 1902, two months after her husband’s death, her purpose to divert the descent of a large share of the estate of her husband from his relatives to her relations begins to manifest itself in tangible form.” All that was while these defendants were living on their Vernon county farm and before they were solicited to come and take charge of Mrs. Burlingame, and there is no evidence that they knew anything of it. The evidence shows that the defendants were reluctant to give up their home on the farm and devote themselves to the care of the invalid, but at last Mrs. Nicholas yielded to the solicitation of her distressed sister. And the evidence also shows that Mrs. Burlingame acted under the advice and with the assistance of a lawyer of excellent reputation in making this deed, therefore there remains not even a presumption to sustain the charge of fraud made against these defendants growing out of the fact of their relationship as nurses. If the plaintiffs themselves ever really entertained such an idea they have abandoned it in their brief; they make no such point there.

2. What appellants really rely on is that the condition on which Mrs. Burlingame was authorized by the will to sell the property did not exist, that it was not necessary for her comfort and support to make the deed in question, but that she.schemed to defraud the plaintiffs by pretending that it was necessary. That charge is double, that is, it asserts the fact that the condition did not exist, and that it was a fraudulent scheme.

If, as appellants contend, the power to sell could not be exercised until a court of equity had found as a fact that it was necessary for hex comfort and support and had decreed the sale, the charge of fraud is merely gratuitous, because in such case, even if she had acted in absolute good faith, the deed would be ineffective. That seems to have been the plaintiffs’ original theory, as shown by their petition, wherein they only assert that the deed is a cloud on their title; it was not until after they came to the stage of filing their reply that the idea of fraud appears. If they were held to the rule that a plaintiff’s case must be stated in his petition and not in his reply, it would shorten the issues in this case.

So far as the defendants are concerned the evidence does not connect them with a single one of the acts which the plaintiffs think indicate a fraudulent purpose on the part of Mrs. Burlingame; those acts all occurred before the defendants had any connection with the case, and the only complaint the plaintiffs can make of them is that they accepted a deed to property which the plaintiffs say was of greater value than their services; of that we will consider presently. But let us first see what ground there is to charge fraud against Mrs. Burlingame. It seems that soon after the death of her husband she thought it best to sell the 144 acres of land, why we do not know except from one of her letters which the plaintiffs introduced in evidence wherein it is said: “The farm is one' thing I would like to sell. It has not paid repairs and taxes since we have owned it. Lee [that is Mr. Burlingame] had two or three trying to sell it before he died.” It was an undesirable, unproductive and expensive piece of property. She had a prospective purchaser, but he was afraid of the title, he said that it might devolve on him forty years thereafter to prove that it was necessary for Mrs. Burlingame to sell the land to provide for her comfort and support and he might not be able to do it. It made no difference whether he was right or wrong in that opinion, it was his opinion and he would not buy until he had a decree of court or the remaindermen’s deed. In that emergency Mrs. Burlin-game wrote to her nieces asking them to sign the quitclaim deeds, hut they refused. Then she went into court as above stated and obtained the decree and consummated the sale. The fact that Mrs. Burlingame went into court to obtain the decree does not signify that either she or her legal adviser thought it was necessary in order to give validity to the title, hut she wanted to sell and could not sell until the prospective purchaser was satisfied. It was perhaps foolish in her to have asked the plaintiffs to sign the deed without reading it, as she herself in a subsequent letter said, but what harm was done? In a letter following, the deeds were enclosed and the whole plot (?) was exposed. One can easily understand how a modest woman in her condition would shrink from going into court and making a public record of her infirmities if it could be avoided. She well said in her letter that if they would sign the papers it would be a great accommodation to her. But when they refused her request Mrs. Burlingame wrote the letter of March 22nd and 24th of which appellants in their brief say: “It does not appear when her purpose to squander the estate of her husband was conceived, hut it was very clearly manifested by her next letter.” That is, the letter of March 22nd and 24th. In that letter she expresses great disappointment and reproaches them with ingratitude; she said: “As it has turned-out I am sorry that I asked either of you or his sister, for it has hurt me more than anything that has ever happened except Lee’s death.” Interpret that letter in the light of the condition of the poor woman, helpless and suffering and being then in the care •only of a hired servant. But the great scheme to defraud, according to the brief of appellants, is manifested in that letter in the threat that instead of a $300 monument to her husband, whose bounty they were all claiming, she was going to erect one to cost $1,000’, and furthermore she was going to contribute with the other ladies of the church to which she belonged to the fresco-ing of its walls and the buying of a velvet carpet, and beyond all that she was going to buy a brass chandelier in Lee’s memory to hang in the very middle of ■ the church! What would the dead man have said if his spirit could have returned and witnessed all that extravagance ! We must remember that that letter was written when the writer was smarting under what she thought was unldndness. But in point of fact the evidence does not show that she did any of those things. If she contributed to the frescoing of the church or to the buying of the carpet or if she herself bought the chandelier it has not been shown, but it is shown that she paid only $255 for the monument. Her threat that she was not going to be saving for their benefit was only a little feminine arrow that might sting but not wound. But all of that testimony was incompetent as to these defendants and their objection to it ought to have been sustained. As to them it is mere hearsay, it is immaterial what Mrs. Burlingame may have done with other property of which they had no knowledge. Even if before seeking the aid of these defendants she had frittered away the money that had before come into her hands, still these defendants were not chargeable with her improvident management, and the fact that she may have been improvident would not have prevented her disposing of the rest of the estate as might “be necessary for her own comfort and support.” The will shows that she was first in her husband’s mind, “for her own comfort and support” all the estate was at her disposal. There was no child of theirs to provide for, she was his all. He knew her condition, and the evidence shows that while he lived she did not suffer for the want of a loving nurse, one who could minister not only to her physical but her mental distress, who could soothe her with kind words, not merely as even the best of hired servants could do, but as only one bound to her with affection. He made his will and died knowing her condition and we must mot forget that fact when we are reading the will. Can we imagine that the testator intended that if she did not use what others might regard as reasonable economy and had improvidently wasted the estate, so that there was little more than one half of it left for his nieces, her power to dispose of it would then cease and she must either go to the county poor house or appeal to the charity of his nieces! The plaintiffs’ case is not stated in that language, but that is what it means.

Let us pursue the charge of fraud against Mrs. Burlingame further. Appellants in their brief say that whilst the precise date of the conception of the fraud is not fixed, yet it was “very clearly manifested” in the letter of March 22nd and 24th. That was three months after the death of her husband, and before any of the acts complained of, except the execution of the deed in question, were committed. "When people lay schemes to defraud do they begin by giving their intended victims notice of what they are going to do? All that this woman did before the execution of the deed in question was done with full notice to the plaintiffs and in open court. In the suit in which the decree authorizing the sale of the farm land and the vacant lot was obtained these plaintiffs were parties defendant. She was executrix of the will and was bound to account in the probate court for every dollar she received belonging to the estate and the presumption is she did so; if she did not, it was the neglect of these plaintiffs, who had a right to contest her final settlement, and who, according to what they now say, knew within two months after the death of her husband that she had fraudulently planned to waste the estate. These defendants had no right to interfere in the administration or file exceptions. The defendants produced in evidence the final settlement of Mrs. Burlin-game which, showed a balance of $802.20 in her favor. The plaintiffs are not assailing that judgment as having been .obtained by fraud, it is therefore conclusive on them and carries the conclusive presumption that all those moneys which plaintiffs now say were squandered were accounted for and allowed in the probate court. What the debts of the estate were, or the expenses of last illness and funeral expenses, we do not know, we only know that the only court that had jurisdiction of the administration approved what was done and found a balance of $802.20 in favor of the executrix. If the plaintiffs had sought to except to the final settlement in the probate court they would have had no difficulty in proving that the executrix had received those moneys, because the public records in the county showed them. But we again say that all that evidence should have been excluded because it is not pretended that defendants had any part in it. They are here to defend their own deed and are not concerned with what occurred before they were called into the case.

One more point as bearing on the charge of Mrs. Burlingame’s fraud. Mr. Burlingame died in December, 1901; the letters that we have read, the sales of the farm lands, etc., occurred in the spring of 1902, and the contract made by Mrs. Burlingame with these defendants by which she agreed to convey the property to them on the conditions named was made in September, 1902, all before the expiration of one year from the death of the testator. .

Plaintiffs in their brief say that “on February 19th, 1902, two months after her husband’s death, her purpose to divert the descent of a large share of the estate of her husband from his relatives to her relations begins to manifest itself in tangible form.” Not only must we presume that Mrs. Burlingame knew what her legal rights were, but the evidence shows that early in that year she had the advice of learned counsel and if she planned to divert the property from her husband’s relations to her own, she could very much more effectually have accomplished that purpose by going into the probate court and renouncing the will and electing to take one half of the estate, which would have resulted in her getting very much more of the estate than what she got under the will. There is one item, to-wit, the opera house, the half interest in which was worth more than all the rest of the estate at the death of the testator, and that the plaintiffs have taken possession of and sold since the death of Mrs. Bur-lingame. But it is evident from her conduct that she preferred to show that respect to her husband’s will rather than demand what the law would have given her in spite of the will. We refer to this only to show how unjust to Mrs. Burlingame is the charge of fraud to defeat the purpose of her husband’s will.

There was testimony on both sides tending to show the market value of the services of a sick nurse and those estimates varied, as in such case we are always to expect, according to the side the witness is on, and' so it was as to the value of the property in suit. Those wide variations show how little probative value there is in such testimony. The character of the services to be rendered is more important to be considered than the market value of the hire of a nurse. In making this will his wife was the chief object of the testator’s affection, he knew her condition, he knew what she needed “for hex own comfort and support,” because he himself had ministered to her, he did not in his own lifetime abandon her to the care of a hired servant, but he gave her that kind attention which no money can buy. Every will for its interpretation depends so much, not only on its own language, but also on its own circumstances, that little aid is derived from what courts have said in interpreting other wills. Counsel for appellants rely with confidence on what was said by the Connecticut Court in Peckham v. Lego, 57 Conn. 553, wherein the testatrix gave to her niece and her niece’s husband “the use and improvement of the remainder of the estate of which I may die possessed, both real and personal, during their natural lives. Should it be necessary for their personal comfort' to use any portion of said property, it is my will that they do so, exercising good judgment and saving as much of it as possible for the children born to them.” It would be a useless consumption of space to point out the difference between the intention of the testatrix in that will and that of the testator in the one we now have before us. We have taken that case as a sample of the cases on which appellants rely. On the other side cases are cited holding that under the terms of the will herein considered, the power to sell rests in the discretion of the widow. [Hazel v. Hagan, 47 Mo. 277; Richardson v. Richardson, 80 Me. 585 and others.]

But we do not feel justified in consuming space to quote from those cases. We have seen no case wherein it is held that a power such as is here given cannot be exercised until at the end of a chancery suit it is decreed that the necessity exists.

If we may consider the spirit which the plaintiffs have manifested in the prosecution of this suit and their opinion as to what was necessary for the comfort and support of the widow, it is safe to say that if she had acted on the idea that a decree of court was necessary to authorize her to make the deed and had instituted such a suit, it would have been pending at her death and the power might as well have never been given. Wills of this kind are not unusual, but they would be useless or worse than useless, a source of unhappy strife, if the appellants’ theory should be adopted. We do not mean to say that if she was recklessly or fraudulently wasting the estate the court could not interpose to restrain her, but until a showing is made to justify the chancellor in laying Ms hands on her the disposal of the property is in her discretion.

The last point we will consider is the contention of appellants that the value of the property conveyed is in excess of that of the services rendered. That point is not to he established by only, showing at what wages a hired nurse could be employed. There are some acts which a hired nurse cannot perform or perform so as to give comfort to the person in distress. Mrs. Gamp was perhaps only a character of fiction, yet Dickens’s hold on the hearts of his readers is due to the fact that he portrayed his characters true to life. Mrs. Burlingame’s afflictions were not only very serious, but were also of a delicate nature, and could not be attended to without mortifying her womanly sensibilities unless the service was rendered by some one who was actuated by more than a mere money consideration. Her husband knew that fact when he made his will, for he had himself ministered to her, and we must keep that in mind when we read the words <£fo.r her own comfort and support.” Can we for a moment think that he intended that she should go into open court and tell the chancellor the character of the service she needed? There was but one person to whom she could turn to ask not only to render the labor but to render it with love and kindness, that was her sister Mrs. Nicholas. Appellants count the time that elapsed between the date when defendants took charge of Mrs. Burlingame and the date of her death and figure out what it would have cost to have kept one or two servants for that period, but that is no criterion, not only for the reason already given, but also because the consideration expressed in the deed required the services to be rendered not for one or two years but to continue during the period of her life and the deed was to become void if they should fail to do so. No one knew how long she might live or how the burden of attending to her might increase. She was sixty-six years old and liable to linger ten or fifteen years; sometimes a helpless person lives beyond expectation. If at any time these defendants had become weary of their engagement and had neglected her or deserted her Mrs. Burlingame could have annulled the deed or caused it to be annulled. The lawyer who wrote the deed was careful to have the defendants sign it binding themselves to perform the obligation. "We find no fault with the deed on the ground of inadequacy of consideration.

In this connection we note the fact that the deed was not recorded until about a month after the death of Mrs. Burlingame. Why it was withheld from record we do not with certainty know, and no suggestion of a motive is made in the briefs on either side. If Mrs. Burlingame had authority to make the deed the withholding of it from record could not affect its validity; if she did not have such authority, the recording of it could not help it. There is but one inference that the situation suggests to us to be drawn from the fact, and that is that Mrs. Burlingame caused it to be withheld from record so as to enable her more easily to annul it in case the defendants failed to perform their duty to her. There is a clause in the deed to the effect that if the defendants should fail to perform their contract the deed was to become void at the option of Mrs. Burlingame. We attach no particular significance to the point, but mention it only to show that it has not escaped our notice.

In view of the conclusions above expressed it is unnecessary to go into the question of improvements made on the lots by defendants. We find no error in the record of which the plaintiffs can complain.

The judgment is affirmed.

Gantt, Burgess and Fox, JJ., concur; Lamm, Woodson and Graves, JJ., dissent in dissenting opinion by Lamm, J.