Mr. Blossom executor in her will; that she never spoke to her at all about having made a will. Upon cross-examination by proponents, witness said that she knew Mrs. Bradford nearly all her life; that she lived in her home since 1890 as a companion; that she went abroad with Mrs. Bradford in 1890 that as Mrs. Bradford grew older she grew physically weaker; that mentally she was bright always; that Mrs. Bradford was considered a very bright, intelligent woman; that, as her physical strength declined, her mental capacity was taken with her physical strength; that she was very weak during the last two years of her life; that Mrs. Bradford died in the year 1898; that in the years 1893-94-95 she was a woman of intelligence, and knew her own will; that she was a woman of very strong will; that she was a very forceful, purposeful woman-eminently so; that she attended to her business with the assistance of her business agent, Mr. Rutledge, who collected her rents, leased her property, and did things of that kind; that Mrs Bradford could handle her own finances at her house. Witness says that she did Mrs. Bradford's shopping and errands, and paid a great many bills for her; that Mrs. Bradford was a sociable woman when she felt well; that there were times when she was perfectly prostrate; that she was a woman of strong natural affections, fond of her children and fond of her grandchildren; that in the later years of her life, from what she told witness, she would say that she contributed largely to the support of her son and daughter; that her son did not depend upon her so much as her daughter, though he lived at home; that the daughter depended more. Witness says that William E. Bradford was dead at the time she went into the household; that Alfred Bradford did not die until 1890; that Alfred Bradford and Emma Bradford were on friendly terms. She had the greatest respect for him. Witness says that Mr. Blossom was at the house of Mrs. Bradford once to a dinner party; that he may have been there once or twice. Of course, she was not at home always, but she remembers these two times absolutely. Witness says that she could not say that Mr. Blossom called at the house occasionally, unless it was when she was away, and, so far as she knows and remembers, the occasions when he came there were when he was sent for. Says that she cannot say that Mrs. Bradford went to see Mr. Blossom repeatedly, but she can say that she has heard Mrs. Bradford say that she would go and ask Mr. Blossom about so and so. She did not say it to her very often. She had Mr. Rutledge always to do it. Upon redirect examination witness said that Mrs. Bradford spoke to her on a number of occasions about consulting Mr. Blossom about her business; that these were the occasions other than the ones when he came to her house. Witness says that Mrs. Bradford

was very hard of hearing; that even when she went there first she was very hard of hearing; that Mrs. Bradford never went out without her ear trumpet after about the first year witness went there. She became accustomed to using it more and more; that the trumpet always went with her when she left the house; that they got three trumpets abroad; that these trumpets were gotten in Europe, and they were her constant companions; that Mrs. Bradford could be made to hear without the trumpet, provided people understood how to talk to her and could talk loud enough, sitting close to her, if their voices were distinct.

Miss Sophy Loessler, the stenographer in Mr. Thompson's office, who copied the will, and was one of the attesting witnesses thereto, testified that, when Mrs. Bradford came to the office of Mr. William B. Thompson for the purpose of executing the will, she was of the impression that she did not come alone, but that Mr. Blossom was with her; that he did not remain during the execution of the will, but introduced Mrs. Bradford and left, but afterwards came back, and he and Mrs. Bradford left together.

The inventories, supplemental inventories, and appraisement of the personal property of the estate of Mrs. Bradford were introduced by the contestants to show the value of the property devised and bequeathed in the will.

Proponents offered no evidence other than as to the formal execution of the will, and the record of its admission to probate.

Since the cause has been pending in this court, Mrs. Ryan has dismissed her appeal, and the cause is now pending on the appeal of Frank Bradford.

The court, by its instruction, in effect told the jury that there was no substantial evidence before them which tended to show that the will in question was procured to be made through fraud practiced upon the testatrix, or undue influence exerted over her by the defendant Howard A. Blossom; and the question is, was there any evidence tending to show either one of these averments? If there was such evidence, the judgment must be reversed; otherwise affirmed.

It is conceded that there was no direct evidence of either fraud or undue influence, but it is contended that contestants were not required to produce direct evidence of either in order to entitle them to go to the jury, and that, if there was substantial evidence tending to show fraud or undue influence in the procurement of the will, this was all that was necessary in order to entitle the contestants to have their case submitted to a jury. Undue influence need not be shown by direct proof, but may be inferred from facts and circumstances. Doherty v. Gilmore, 136 Mo. 414, 37 S. W. 1127. It may be shown by the relation of the parties, the mental condition of the person whose act is in question, and the character of the trans

to execute the will, he should have retired therefrom while she was executing it, and, after she had done so, return for her, unless it was to avoid any suspicion that might be occasioned by his presence when she signed the will that she was executing the same by reason of his undue influence over her. At the burial of Mrs. Bradford he wanted to know of Mrs. Ryan which house she was going to live in, and when she stated that she was going to her mother's house he replied, "You are, are you?" and, as the witness says, "seemed very much confused, and did not seem to like the idea of my returning to my mother's house." All of these facts and circumstances must, under the instruction of the court, which was in the nature of a demurrer to the evidence, be taken as true; and when such facts and circumstances are considered in connection with the great confidence that the testatrix seemed to have had in Mr. Blossom, to the extent that when she had any business of great importance she would advise with him; the interest, both direct and indirect, that he had in the property described in the will; its remarkable provisions in many respects, especially in that it not only makes the defendant trustee for her children, but also for their children, or any grandchildren that might be born to them during their natural lives; with full power upon his part to appoint his successor as trustee by instrument in writing, or, in case of the trustee's death, then by will; without bond as executor or as trustee of so large an estate, thus showing unbounded confidence in him-tend strongly to show that the instrument of writing is not the will of the testatrix, and that it was procured by undue influence on the part of Mr. Blossom, and, at the least, calls for an explanation from him. In Gay v. Gillilan, 92 Mo. 263, 5 S. W. 11, 1 Am. St. Rep. 712, it is said: "And while it is true that undue influence will not be presumed, yet, when such facts are proved as will authorize a jury to find the existence of undue influence, then the burden shifts, and it then devolves upon the party charged to exonerate himself from such charge in like manner as in the case of fiduciary or confidential relations." Maddox v. Maddox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. 734. In passing upon the question as to whether or not a will is the result of undue influence, the question should be determined in the light of all the circumstances connected with and bearing upon its execution, and the provisions of the will itself. Myers V. Hauger, 98 Mo. 433, 11 S. W. 974. And "undue influence may be shown by the relation of the parties, the mental condition of the person whose act is in question, and the character of the transaction." That the testatrix had the power to dispose of her property as she saw proper cannot be 'questioned, provided she was not unduly influenced in so doing, which we think, under

the facts and circumstances disclosed by the record, was for the consideration of the jury.

Our conclusion is that the judgment should be reversed, and the cause remanded for further trial. It is so ordered.

GANTT, VALLIANT, FOX, and LAMM, JJ., concur. BRACE, C. J., and MARSHALL, J., dissent.

MAHONEY v. NEVINS et al.

(Supreme Court of Missouri, Division No. 2. July 3, 1905.)

1. TENANTS IN COMMON-PURCHASE OF INCUMBRANCE-CONTRIBUTION.

Where a co-tenant buys in an incumbrance without any express agreement, the other cotenants are bound in equity to contribute their respective proportions of the consideration paid.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Tenancy in Common, § 59.] 2. SAME-EFFECT OF PURCHASE.

A co-tenant cannot, by buying in an outstanding incumbrance. acquire title as against his co-tenants.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Tenancy in Common, §§ 55-59.] 3. HUSBAND AND WIFE-DEATH OF HUSBAND -PERSONAL ESTATE-WIDOW'S TITLE.

Where the personal estate left by a deceased husband and in the possession of his widow did not exceed the amount to which she was absolutely entitled under Rev. St. 1899, §§ 107, 108, though there was no administration, the widow would, in equity, be regarded as having title.

A widow with no minor children was entitled to the crops growing on the homestead at the time of the husband's death.

[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Homestead, § 267.]

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Suit by Henry Mahoney against Mollie Nevins and others, and from the decree granting insufficient relief plaintiff appeals. Affirmed.

Lozier & Morris and S. J. Jones, for appellant. Conkling & Rea, for respondents.

GANTT, J. This is an appeal from a decree in equity by the circuit court of Carroll county setting aside a trustee deed to the homestead of Patrick Mahoney, deceased, and adjudging contribution by the plaintiff and the other heirs of Patrick Mahoney to defendant Catherine Mahoney on the ground that the said deed of trust and note secured thereby was acquired by said Mollie Nevins as a tenant in common with plaintiff and the other heirs of Patrick Mahoney to the exclusion of plaintiff and said heirs. Patrick Mahoney and defendant Catherine Mahoney, his wife, on the 15th of December, 1890, executed to Gus Siegel a deed of trust to secure payment of a note for $360, bearing interest at 8 per cent. per annum, on 45.96 acres off the south half of the southwest

quarter of section 18, township 55, range 21, Carroll county, Mo., which land was worth about $1,300, and at that time was the homestead of said Patrick Mahoney. On the

day of February, 1891, while the deed of trust was still a lien on the land, Patrick Mahoney died intestate, leaving no other debts, still owning and residing on this land as his homestead. He left surviving him his widow, Catherine Mahoney, who was entitled to a homestead in the land; Henry Mahoney, a son, the plaintiff; Mollie Nevins, a daughter; and Cora, Mary, William, and Jessie Rinehart, grandchildren, being the children and sole heirs in law of a deceased daughter, named Kate Rinehart. Catherine Mahoney, the widow, was entitled to use and occupy all the premises, upon the death of her husband, as her homestead, and she was also entitled, by reason thereof, to all rents, issues, and profits arising therefrom. Catherine Mahoney was the mother of Henry Mahoney and Mollie Nevins, and the grandmother of the Rinehart children, and continually resided on the homestead until shortly before the suit. Patrick Mahoney at his death owned personal property consisting of a team of horses, five cows, twelve hogs, some grain and hay, and farm machinery, worth less than $300. The twelve hogs were soon sold by the widow, and delivered by Henry Mahoney, the son, and all the money arising therefrom used to pay the funeral expenses. At the time of Patrick Mahoney's death there was also growing on this homestead property a crop of wheat, which was afterwards harvested, and sold by his widow for $238 gross. Henry Mahoney hauled this wheat to market at the request of his mother, and she paid him for his work. No letters of administration were ever granted on the estate of Patrick Mahoney by the probate court of Carroll county, nor was there any order or judgment of said court refusing to grant letters of administration upon the ground that the personal assets of the estate were less in quantity and value than allowed the widow by law; but the evidence conclusively shows that in reality the value of the personal property would not exceed the amount allowed the widow by law. This is a suit in equity growing out of the deed of trust and note executed by Patrick Mahoney to said Gus Siegel. In December, 1891, Catherine Mahoney furnished Mollie Nevins with $295 with which to buy said note, which at that time amounted to $388; Mollie Nevins furnishing the balance of the money to buy the note. The portion of the money paid of Catherine Mahoney for the note was derived by her from the sale of the wheat and personal property left by her husband. The note was assigned to Mollie Nevins, who, on the 13th of November, 1900, had the deed of trust securing the same foreclosed in accordance with the terms and conditions thereof. At such foreclosure a life estate

was conveyed to Catherine Mahoney and the remainder in fee to Mollie Nevins, whereupon the plaintiff instituted this suit to cancel the deed of trust, in which suit Mollie Nevins, Catherine Mahoney, and the Rinehart children were all made defendants. The amended answer of defendants Mollie Nevins and Catherine Mahoney states that the purchase of said note "was made with the full knowledge and consent of plaintiff, and not in fraud or prejudice of his rights; and that for a period of almost ten years, although knowing said facts, he failed and neglected to make any objection thereto, or to make any contribution on his part on account of the purchase of said incumbrance"; and, “if the court should find that plaintiff and the other defendants herein are yet entitled to make contribution on account of the amount paid by these defendants for said incumbrance, then these defendants pray that judgment may be rendered in their favor or in favor of defendant Catherine Mahoney against the other parties herein for the amount which may be found due from them in contribution on account of the purchase of said incumbrance, and for all other and further relief that may be just and equitable." The trial court found that the purchase by Mollie Nevins was not in fact a purchase, but a payment of the Siegel note, and that Henry Mahoney, the Rinehart children, and Mollie Nevins should contribute to Catherine Mahoney their respective proportions of the consideration paid for the note. The court found that the personal property which Patrick Mahoney left at the time of his death did not amount to more than that allowed the widow by law, and that in equity she was entitled to all of it. The note at the time of the suit amounted to $465.45, and the court found that Henry Mahoney should pay his mother $155.15, that the Rinehart children should pay the same amount, and that Mollie Nevins should pay $12; from which judgment the plaintiff has appealed.

1. There is practically but one question left in this appeal. The circuit court found, and the evidence abundantly supports its decree, that the purchase of the Patrick Mahoney note by Mrs. Nevins was a payment thereof by two of the co-tenants, and that one tenant could not buy in an outstanding incumbrance on the joint property, and thereby acquire title against her co-tenants. Respondents concede this statement of the law, but assert that, if one co-tenant does buy in an outstanding title or incumbrance without any express agreement, then the other co-tenants are bound in equity to contribute their respective proportions of the consideration paid for such outstanding incumbrance or title; and of this there can be no question. Cockrill v. Hutchinson, 135 Mo. 67, 36 S. W. 375, 58 Am. St. Rep. 564; Dillinger v. Kelley, 84 Mo. 561; Allen v. De Groodt, 105 Mo. 442, 16 S. W. 494, 1049. So that the contention is narrowed down to the

question whether Mrs. Mahoney's contribution to the payment of the deed of trust was with her own means or with moneys belonging to the heirs of her deceased husband. There is no dispute as to the facts. At his death Patrick Mahoney left less than $300 worth of personal property and the homestead on which he resided. No administration was had in his estate, and he owed no debts except the one secured by the deed of trust on his homestead. 'Mrs. Mahoney sold a portion of the personal property, and out of the proceeds paid the funeral expenses. The contention now is that because there was no administration Mrs. Mahoney had no title to the personal estate left by her husband, though it was in her possession as his widow, and was less than the amount to which she was absolutely entitled at the time. Sections 107, 108, Rev. St. 1889. That the widow was, in view of the amount of personal property left by her husband, absolutely entitled to all of it, there can be no doubt whatever. This provision of our administration law was construed in Hastings v. Myers' Adm'r, 21 Mo. 519. In that case Jacob Myers died leaving a widow, Margaret Myers, who died leaving children before she had received from her husband's estate the sum of $200 in property as a part of her dower allowed by the administration law. The administrator on a settlement showed he had $195.08 in his hands. The creditors claimed this sum, but her children demanded it. The county court adjudged it should be applied to the debts, and the children appealed. Judge Scott, for this court, held the widow was entitled to the fund to the exclusion of creditors, but that it should be paid to her administrator. In McFarland | v. Baze's Adm'r, 24 Mo. 156, Judge Leonard held that the $200 of personal property allowed as a part of her dower vested in the widow immediately upon her husband's

death, discharged of the lien of the debts, and would pass by her assignment of dower. In Cummings v. Cummings, 51 Mo. 261, it was held the $400 to which the widow is entitled is hers absolutely, is a part of her dower, and does not depend on her election. Comerford v. Coulter, 82 Mo. App. 362. Conceding that regularly the legal title to this personal property left by Patrick Mahoney, and less than $400 in value, would have been in his administrator had one been appointed, it is clear that the equitable title thereto was in his widow, and a court of equity would not go through the formula of enforcing an administrator's mere naked legal right that he might uselessly distribute it to her. Richardson v. Cole, 160 Mo. 372, 61 S. W. 182. She had this property in possession, and of her own accord devoted a portion of it to the funeral expenses, and we have no hesitancy in this equitable proceeding by the heirs in holding she had the equitable title thereto as against them, and when she devoted it to the relief of their

homestead she was entitled to exoneration and contribution from them before they could share in the estate which her payment relieved from the incumbrance thereon. The decision in Adey v. Adey, 58 Mo. App. 408, and McMillan v. Wacker, 57 Mo. App. 220, were both replevin suits, in which the legal title only was involved, and in no manner conflict with the conclusion we have reached in this case, which is a suit in equity, and the equitable title to the absolute property in possession of the widow is involved.

2. The next inquiry is as to the widow's right to the growing wheat crop on the homestead at the time of her husband's death. It is conceded it was growing on the homestead at the time of her husband's death, and was afterwards harvested by her. and sold for $238. There were no minor children of the deceased, Patrick Mahoney, at the date of his death. Consequently the widow was entitled to the exclusive possession of the homestead. It is obvious that the homestead was the superior right, and the assignment of dower has no place in the determination of the question as to the ownership of the growing wheat. As the owner of the homestead, Mrs. Catherine Mahoney was entitled to all the rents, issues, and products during the existence of her homestead estate, and consequently to the wheat growing thereon. Alley v. Burnett, 134 Mo. 321, 33 S. W. 1122, 35 S. W. 1137; Gentry v. Gentry, 122 Mo. 202, 26 S. W. 1090. By the purchase of the mortgage debt Mrs. Mahoney was subrogated to the rights of the mortgagee, and the purchase inured to her benefit so far as to keep the incumbrance alive against the plaintiff and the other heirs in remainder.

The foregoing were the grounds upon which the circuit court based its decree, and we concur in the view taken by our learned Brother on the circuit, and accordingly the decree is in all things affirmed. All concur.

STATE v. BAILEY. (Supreme Court of Missouri, Division No. 2. June 6, 1905.)

1. HOMICIDE

- INFORMATION-INFLICTION OF WOUND-SUFFICIENCY OF ALLEGATION.

An information alleging that defendants, having in their hands a pistol loaded with gunpowder and leaden bullets, did feloniously, etc., discharge and shoot off the same at, upon, and against deceased, and him, the said deceased, with the leaden bullets aforesaid, out of the pistol aforesaid, by the force of the gunpowder aforesaid, by the said defendant shot off and discharged as aforesaid, then and there feloniously, etc., on purpose, etc., did strike, penetrate, and wound the said deceased in and upon the body of him, the said deceased, thereby giving to him, the said deceased, with the leaden bullets aforesaid, so as aforesaid discharged and shot off out of the pistol aforesaid by the said defendants, one mortal wound, sufficiently charges defendants with having inflicted the wound upon deceased from which he died.