says it was not necessary that such initials should be so indorsed; that there were 14,500 votes cast for contestant, but counted for contestee, and 100 such in each precinct, but that the particular ballots are not specified; that 851 persons voted for contestee who did not reside at the places set opposite their names on the registration lists, but that the specifications as to those persons are vague and indefinite, etc. Although the notice may state a case defectively (as to which in this instance we express no opinion) still, if it states a case at all (as to which we hold that the notice in this case does), the court has jurisdiction, and prohibition will not lie merely to correct an erroneous ruling on a motion in the nature of a demurrer to the notice.

4. The proposition that the order of the court in reference to opening, counting, and comparing the ballots is in violation of the provision of the Constitution designed to preserve the secrecy of the ballot is based on the statement that the law applicable to Kansas City requires the registration number of the voter to be placed on the back of the ballot, and, since the registration lists are public documents, this number is an easy and a certain means by which each voter may be identified, and his ballot exposed, in violation of the law, as laid down by this court in State ex rel. Funkhauser v. Spencer, 164 Mo. 23, 63 S. W. 1112, and Id., 166 Mo. 271, 65 S. W. 981. The order of the court is as follows: "Now, therefore, these presents are to command you and each of you members of the said board of election commissioners, to proceed to open, examine, and recount all the ballots that were cast at said election held in the city of Kansas City, in said county and state, on the first Tuesday after the first Monday in April, 1904, the same being the 5th day of April, 1904, for the office of police judge of said city for the term aforesaid, and that you certify to this court under your hand and seal, as required by law, the result of such examination and recount of the said ballots so far as the same relate to the office aforesaid in contest in the election contest above mentioned; and that you distinguish be tween the ballots which were counted and those which were rejected by the judges of election acting in the several precincts of said city of Kansas City at the election aforesaid, and that you certify to this court any and all objections made to any of the ballots cast at said election for said office by the parties to this contest." It will be noticed that this order contains no such features as were condemned by this court in the cases above cited, and there is nothing on its face to create the apprehension that relator now feels that the voters will suffer exposure of their ballots. We have never held that the ballots could not be opened and recounted and the result certified. It is a question of law, on which the counsel in this

case are not agreed, as to whether or not the election law applicable to Kansas City requires the registration number of the voter to be placed on the ballot. It is immaterial, so far as the point now under discussion is concerned, whether the law did or did not so require. The material question is, was this number in fact placed on these ballots that are now to be counted? If this number was in fact not placed on the ballots, although the law may have required it, there is no danger of identifying the voter by a number on the ballot; and if the number is there, although the law did not require it, that means of identification is furnished. In his petition for the writ of prohibition the relator states that the law requires the number to be placed on the ballot, but he does not say that it was in fact placed there.. In their return to the rule to show cause the election commissioners state that the law does not require it, and they also state that in point of fact the registration number was not placed on the ballot. In his reply to the return, although the relator reasserts that the law requires it, he does not deny the statement of the fact that the number is not there. We must therefore take the undenied statement of fact in the return to be true, and conclude that the relator's apprehension of danger of exposure from the supposed number on the ballot is unfounded.

The presumption must be indulged that Judge Evans took the same view of the law on this point that the election commissioners took, or else that he was informed as to the Ifact that the registration number was not on the ballots, and therefore he made his order without safeguarding the secrecy of the ballot from that source. If, in the execution of the order, the fact should develop that the number is on the ballot, and the relator's apprehension of danger is therefore well founded, he can bring the matter to the attention of the judge, who, the law presumes, will do what is right in the premises. But in order to grant a writ of prohibition now we would first have to assume as a fact what the record not only does not show to be a fact, but shows rather to the contrary, and, second, that the circuit judge would not do his duty when the fact was properly brought to his attention.

The writ of prohibition is denied. All concur, except BURGESS, J., absent.

The plaintiff is a four-times widow, and, when the deed sought to be set aside was made, she was over 80 years old. Though so often playing the lottery of life, and though she had been the mother of five children, at the time of the transaction complained of she lived alone-having a few roomers -in a little three-room cottage on the property conveyed. All her children were dead except one daughter, who was married and lived in Oregon, and she had visited her mother but twice in 15 years. The plaintiff was unable to read or write; had no business training or experience; owned lots 47 and 48 in Garaghty's Addition to Cape Girardeau; lived in the cottage aforesaid that was located on lot 48; had a few roomers, who together paid her $6 a month; and raised grapes on lot 47, from which she realized a small return. She had no other business, and her only care, outside of her occupation aforesaid, was to pay her taxes. Besides the real estate, she owned a note for $300, which represented money she had loaned to a minister; and the defendant's evidence tends quite indefinitely to show that she had some money on hand, but the amount is not accurately stated. The defendant had lived in the same neighborhood for many years, and she visited his house, but it appears that he did not visit her. Nevertheless she regarded him as her friend, sought his advice, and acted upon it. Some time prior to this transaction she had agreed to sell the property to one Blomeyer for $1,250, the purchase price to be secured by a mortgage on the property. After the deed was executed, but before it was delivered, and before the mortgage was made, she repented of the trade, and went to see the defendant about it, and enlisted his aid to get the trade canceled. She wanted it arranged so that she could live in the house during her

life. She says that, when she told the defendant about the transaction, he said he would give her as much for the property as any one else, and that she agreed to sell the property to him for $1,200, of which he was to pay her $100 in cash, and the balance as she needed it, and that she was to have the right to live in the house during her lifetime. The defendant says that for two months before the transaction she came to his house every day, or every other day, and wanted him to sell the property for her; that she had previously sold it, but had canceled the trade; that he saw the former pur; chaser, and he would not buy, and she then suggested that he buy it; that he told her he had no use for it, but, as she said she did not want any money, and wanted the purchase price paid to her daughter after her death, and wanted to stay in the house during her life, or if she left the house he was to take care of her, he agreed to take the property on those conditions, and to pay $1,000 for it. At any rate, the deed to the former purchaser was recalled and never delivered to him, and the plaintiff and defendant went to a notary's office to close up the trade between them, with the result that a deed was executed by the plaintiff to the defendant for the two lots which recited that the consideration was $1,000, the receipt of which was acknowledged, and wherein it was stated that the plaintiff was to "retain the right to live in the home as long as she pleases, or if she changes her residence the said second party is to keep her and support her." At the same time the plaintiff made her will, whereby she appointed the defendant her executor, without bond, made small specific devises, leaving the bulk of her wardrobe to the defendant's wife, and made the following provision for her only living child: "To my daughter Mary A. Peterson I leave my best wishes and what my executor gives her." The defendant then made a note for $1,000, payable six months after the plaintiff's death to her said daughter. The defendant paid the plaintiff nothing whatever. He says he paid for the stamps on the deed, but did not pay for drawing the deed. The notary says that the plaintiff paid him for drawing the deed, but she denies this, and says she don't know who paid him. The deed was delivered and promptly recorded. The notary kept possession of the will and the note, and refused to give them up when requested by the plaintiff. The defendant says he spent about $30 in putting up a partition fence between the two lots and in having the grapevines trimmed, and this and his trouble in the matter is the whole he is out on the transaction. When the defendant was putting up the partition fence, the plaintiff heard one of the defendant's little boys say that the defendant would soon have the plaintiff out of the house. This alarmed her so that she took counsel with her friends. They demanded

that the defendant cancel the transaction and reconvey the property. This he refused to do, but agreed so to do if the plaintiff would pay him $250, which he explained upon the trial was to cover the $30 he had expended and the trouble he had had in the matter, which trouble he said consisted of his driving the plaintiff in his buggy about a mile to the notary's office about six times. When she and her friends refused to do so, they arranged it so that he conveyed lot 48 back to her, the note for $1,000 was canceled, and the condition in the deed from the plaintiff to the defendant requiring him to keep her and support her in case she left the house was expressly rescinded. This left the matter in this shape: The defendant had title to and possession of lot 47, which he admits was worth $300, and for which he had expended about $30, and had gotten the crop of grapes off of it, but had never paid the plaintiff a cent, and the plaintiff had lost the lot. The only explanation the defendant gives for making the deed upon the terms as stated by the defendant is that the plaintiff did not need any money, and was afraid that, if she sold the property and got the cash, her relatives would get it away from her, and it would be lost to her daughter, and therefore she wanted the note for the $1,000 made payable to her daughter. The notary says that he read the deed over to her several times, and that after it was executed she said she was rid of her cares, and did not have to bother herself any more about her houses.

Reduced to its essentials, the case made, in a word, is this: The plaintiff, an aged lady, owned two lots, worth at least $1,200, on one of which was her little home, from which she received enough to live on. She deeded the property to the defendant, and made a will appointing him executor, without bond, left the bulk of her wardrobe to the defendant's wife, and practically disinherited her only child, by leaving her her best wishes, and only what her executor chose to give her out of her estate. The plaintiff got nothing from the defendant, except the leave of the defendant to live in her own house as long as she lived, or, if she chose to change her residence, the unguarantied promise of the defendant to care for and support her during the short time that in the course of nature she would live. The defendant says he executed a note for $1,000 payable to her daughter six months after the plaintiff's death, but the note was never delivered to the plaintiff or her daughter, and, according to the defendant, was left with the notary, and he refused to give it to the plaintiff. Friends of the plaintiff demanded that the defendant rescind the deed, but he refused, unless she would pay him $250, and, upon her inability and refusal to do so, he was induced by said friends to reconvey the lot on which the house was situated,

upon the $1,000 note being canceled, and that he be released from his promise to care for and support her if she chose to leave her home. But the defendant retained the other lot, as he says, to pay him for the expense he had been to trimming the grapevines and building the partition fence, and for his "trouble" in driving the plaintiff in his buggy to the notary's office about six times. The plaintiff has received no consideration whatever, and the defendant now has title to lot 47, without having paid anything for it, and without being now under obligation to pay either the plaintiff or any one anything for it.

The defendant sought to defeat the plaintiff in this action for the recovery of lot 47 by showing that, after he reconveyed lot 48 to her, she sold it to her stepson for $500 in cash, and his promise to support her and let her live in the home as long as she lived, and that a short time afterwards she loaned the $500 to her stepson; but the mere statement of the matter is enough to show that it is no defense to this action for the recovery of lot 47 to show that some one else has also defrauded her out of lot 48. The trial court erred in admitting such evidence, for, if her stepson has also defrauded her, that wrong cannot be remedied in this action, and is no excuse to defendant for his conduct. Even if that testimony was admissible and was true, its only bearing on this case would be to show that the plaintiff is wholly unable to take proper care of her property, and to emphasize the wrong the defendant has done her.

Of course, a person sui juris has a right to give away his property if he chooses, and courts will not relieve against such a transaction merely because the act was voluntary or without consideration, or for an inadequate consideration. But courts scrutinize such transactions with a jealous eye, and, when the conveyance is to a third person, to whom the plaintiff was under no ob ligation, and to whom he owed no legal, moral, or natural duty, or when the result of the transaction is to strip the grantor substantially of all his property, and to prac tically disinherit the offspring of the grantor, the courts look into it with a suspicious eye, to see the reason and honesty of the transaction; and where, as here, the grantor is over 80 years old, and is unable to read or write, and has derived no benefit whatever from it, and has no business experience, and acted without proper and competent and independent and disinterested advice, and when the defendant admits that he counsel ed the grantor not to tell any one about the transaction, the law will right the wrong and restore the property, both because of a total failure of consideration, and because the transaction is fraudulent on its face. Armstrong v. Logan, 115 Mo. 465, 22 S. W. 384; Martin v. Baker, 135 Mo. 495, 36 S.

W. 369; Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087; Wilson v. Jackson, 167 Mo. 135, 66 S. W. 972.

This conclusion is based upon the defendant's version of the contract. But when the plaintiff's version is considered the case becomes very different, and the wrong done much more flagrant. She says Blomeyer had offered her $1,250 for the house, which he was to secure by a mortgage, but she wanted to retain a life estate in the land, which Blomeyer would not agree to; and she consulted the defendant about it, and sought his aid to prevent the delivery of the deed she had made to Blomeyer. The defendant said he would give her as much for the property as any one, and she agreed to sell it to him for that price-he to pay $100 cash, and the balance as she needed it— and that he never paid anything, and never gave her any note or writing, and that the deed was to be made upon these terms, and that she did not know that it was not so made, nor did she know anything about the $1,000 note payable to her daughter after her death until later, when she heard the defendant's son say the defendant would soon have her out of the house. Upon this showing, the plaintiff would be entitled to have the deed set aside for a failure of consideration, and because the deed does not reflect correctly the agreement, irrespective of the fraud.

Upon the whole case, it clearly appears that the plaintiff is entitled to the relief sought, and that the trial court erred in dismissing the bill. The judgment of the trial court is reversed, and the cause remanded, with direction to enter a decree canceling the deed from the plaintiff to the defendant, and revesting the property in the plaintiff. All concur, except ROBINSON, J., absent.

GANNON et al. v. PAUK et al.* (Supreme Court of Missouri, Division No. 1. March 17, 1904.)

WILLS

CONSTRUCTION

ESTATE TAIL-STATUTES-LIFE ESTATE WITH REMAINDER IN FEE.

1. Sess. Acts 1815-16, p. 32, abolished estates tail, and Rev. St. 1825, p. 216, and Rev. St. 1899, § 4592, provide that in cases where by the common law or the statute law of England any person might become seised in fee tail of any lands, etc., he shall have only a life estate, and the remainder in fee simple shall pass to the person next in line, and Rev. St. 1899, § 4593. provides that where a remainder in lands shall be limited to take effect on the death of any person without heirs or without issue, or on failure of issue, the word "heirs" or "issue" shall be construed to mean heirs or issue living at the death of the person named as ancestor. Testator devised lands to his two sons, and to their heirs and assigns forever, and provided that the same should not be sold before the younger of the two should become of lawful age, and that, should either of them die without is*Rehearing denied October 27, 1904.

sue, the survivor, his heirs and assigns, should take the part bequeathed to the son so dying, and that, in the event both should die without issue, then testator's surviving heirs should take. Held that, by the use of the word "heirs" in connection with the word "issue," testator created what would have been at common law or by the statute de donis an estate tail, or, Rev. St. 1899, § 4593, not being applicable to an executory devise, even if the estate was a fee simple in the first instance, it was cut down to a fee tail by the clause declaring that in case of the death of both sons without leaving issue the estate was to revert to the heirs of testator-the failure of issue referred to being an indefinite failure of issue and hence, under section 4592, the two sons took a life estate, with remainder in fee to their children.

Appeal from Circuit Court, St. Louis County; J. W. McElhinney, Judge.

Suit by Ed. Gannon and another against Gustave Pauk and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Henry T. Kent and Jas. W. Williams, fɔr appellants. T. K. Skinker and Chas. C. Collins, for respondents.

VALLIANT, J. This is a suit in ejectment. Michael J. Gannon, the common source of title, died in 1870, leaving a will devising the land in question to his two sons, Michael and Joseph, in the following words: "Fourth. I give, devise and bequeath unto my two sons, Michael J. Gannon, Jr., and Joseph E. Gannon, and unto their heirs and assigns forever, my farm lying and being in the county of St. Louis and State of Missouri, which lies in the southern limits of Kirkwood, containing eighty (80) acres, be the same more or less. It is my will that the same shall not be sold-at least, not before the younger of the two, that is, Joseph E. Gannon, becomes of lawful age; and should either of them die without issue, then the survivor, his heirs and assigns, to take, own and have the part and portion hereby bequeathed to the one so dying. And in the event both should die without leaving any issue then it is my will that my surviving heirs (with the exception of my son, John T. Gannon who has had his share) shall have such property like and like." It is stipulated that whatever title Michael J. Gannon, Jr., and Joseph E. Gannon took under the will, was conveyed by them, and has passed by mesne conveyances to the defendant Gustave Pauk. Michael J., Jr., died in 1887, leaving children living at the time of his death, and Joseph E. died in 1893, also leaving children living at the time of his death. These children of Michael J., Jr., and Joseph E. are the plaintiffs in this suit.

The decision in the case will turn on the construction to be given to the clause in the will above quoted. The plaintiffs contend that the estate devised was what by the common law would be an estate tail, which, under our statute, is reduced to an estate for life in the first taker, with the remainder in fee to the next in line. The defend

ants contend that the estate devised to the two sons of the testator was a fee determinable as to each upon his dying without issue living at the time of his death, and, as both died leaving issue, after having conveyed the land, the contingency on which the fee was to determine never occurred, and the estate became absolute. The trial court took the defendants' view of the case, and entered judgment accordingly, from which judgment the plaintiffs appeal.

If the first sentence of this clause was all there was of it, there could be no question about it. In language more expressive of a purpose to give an absolute fee than necessary, the testator makes the devise in the first sentence, and concludes it with a period. Whether by the use of the words "and unto their heirs and assigns forever" the testator intended to emphasize a purpose to give an absolute fee is a question that we can answer only after reading the whole clause, perhaps the whole will. The mere use of such words unnecessarily does not always indicate such a purpose. In fact, it not unfrequently suggests a lack of knowledge of words necessary to express a given purpose. It often evinces a lack of confidence of the writer in the force of the words previously used, and for that reason casts a doubt on their meaning. One who knows his own purpose and knows how to express it is less liable to multiply his words than one less informed. The consequence is that when we see words unskillfully used, especially technical words, we are less certain of the meaning intended than we would be if the words were used with skill. That is the reason that we are required, when we come to construe a will, to give less force to the forms of expression than we do in construing some other instruments, and to gather, if we can, in spite of the sometimes inappropriate use of technical words, the real purpose of the testator. The words "I give, devise and bequeath unto my two sons, Michael J. Gannon, Jr., and Joseph E. Gannon, * my farm lying and being in the county of St. Louis," etc., were sufficient, if left alone, to carry a fee simple to the devisees. If that was the design of the testator, then the addition of the words "and unto their heirs and assigns forever" really gives no force to the preceding sentence, and only suggests that the testator was not sure as to the meaning of the words already used, or even of the words unnecessarily added. Those words in this will are just as apt to an estate tail, if that was the intention, as they are to an estate in fee, if that was the intention. The word "heirs," expressed or implied, is as essential to the creation of an estate tail as of an estate in fee simple; the only difference being that in the one particular heirs must be indicated, while in the other general heirs is meant. Did the testator intend to give his sons an absolute fee, or a fee determinable upon the death

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of both without issue, or did he intend to create a fee tail?

It is not contended by the respondents that the testator intended to give an absolute fee, but the argument is that having granted an estate in fee, and conferred with it the power of absolute disposal of the property, an absolute estate was thereby created, and the attempted limitation over was void. The legal principle announced in that proposition is correct, and the authorities cited by the learned counsel sustain it. "If, therefore, there be an absolute power of disposition given by the will to the first taker (as if an estate be devised to A. in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over the property which he, dying without heirs, should leave, or without selling or devising the same), in all such cases the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise because the limitation is inconsistent with the absolute power of disposition expressly given or necessarily implied by the will." 4 Kent, Com. (14th Ed.) p. 270; 2 Washb. R. P. (6th Ed.) 667; Yocum v. Siler, 160 Mo. 281, 61 S. W. 208; Roth v. Rauschenbusch, 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455.

To apply that doctrine to this will, however, we would have to assume, first, that the estate devised to the first takers was an estate in fee simple, which, is one of the main points in dispute; and, second, that the language of the will expressly or by necessary implication confers an absolute power of disposal of the property on the two sons. Passing for the present over the first point, let us see if the power of disposition is expressly or by implication conferred.

Taking the text just quoted, wherein the rule is correctly stated, we see that the power of disposition referred to is not that which might be implied as an attribute of the estate granted, but, in order to have the effect of cutting off the executory devise, it is a power given by the will in addition to the estate. A power of disposition is implied in every grant of a fee simple, yet the power so implied will not render void an otherwise valid executory devise, but when the fee is granted, and, besides that, the power of disposition is added, then there can be no limitation over. There is no such added power in this will. The most that can be claimed for the language used in reference to that point is that it indicates that the testator understood that the power to sell was incident to the estate already granted, and he aimed to restrict that power. The language is: "It is my will that the same shall not be sold at least, not before the younger of the two, that is, Joseph E. Gannon, becomes of lawful age." There is therefore no such power of disposition given in addition to the estate given as would render void an attempted executory devise. If it is a deter