them removed. That in the spring before his death the testator rented to Jacob Burch 200 acres of land at $6 an acre, and within a few days thereafter the testator stated to Humphrey that his wife would not permit the land to "be plowed up," and for that reason the lease of the land fell through. That a short time prior thereto the testator volunteered to loan to said witness a sum of money on a farm he was buying, but when it came to the time to get the money he told the witness that his wife and William would not let him make the loan; consequently it fell through. He also stated that while he

would like to make the loan, but, rather than to have trouble in the family he would rather not make it; also that he said that the only trouble he ever had was with the members of his family.

The plaintiffs' statement of the evidence regarding the facts attending the execution of the will is thus stated by counsel:

was in no manner informed, nor did he know, what had beeen written therein during the 30 or 40 minutes that Rogers wrote after Souers came. Rogers says that he could, and probably did, write the six lines and four words constituting the attestation clause in 3 minutes. No conversation of any kind was carried on by any ers busily writing all the time. Finally Rogof these three people during that half hour; Rogers finished, and said, 'Well, here she is, Jake,' and Jake replied, 'I guess I will have to sign first,' and the will was signed and witnessed. The reason he gave Rogers for making the will the way he did was that he wanted to keep the bigger portion of the estate in the name of the Linebaugh family.

"But little was seen of Mr. Linebaugh after

that day, but Rogers went back 2 days later, and borrowed $200 from him. In 30 days he took to his bed, and died 2 weeks later; but just before his death he requested his people to buy for him a lot in the cemetery, near to Janie, for he wanted to be buried as close to her as he could; and this they did."

That some of the beneficiaries testified that:

Jeff (William) talked to Alma Humphrey, and "On the night before Mr. Linebaugh died

"Early in the afternoon of August 30, 1910, the nurse, Mrs. Miller, 'that the old man's mind "During the last sickness Mrs. Linebaugh told Mr. Linebaugh came alone in a buggy to a place had not been right since Janie died. He had in the public road where T. J. Rogers, an aged been an awful burden to her since that time. justice of the peace, was mowing weeds. Mr. That he would often call her into the room Rogers says: 'He told me he wanted me write him a will; that he had concluded to would stand and talk to the picture and cry to where Janie's picture hung on the wall and he change his will; that it didn't suit him in some like a child.' Mrs. Linebaugh denies making respects.' This was Tuesday, and Mr. Linethis statement. baugh wanted it done on the next day, but Rogers told him that he could not go on Wednesday, but promised to go on Thursday. Mr. Linebaugh then suggested his two hired men as witnesses, but Rogers thought they would not do, and told him to get two others. On the next afternoon, in Clearmont, he called Mr. W. S. Wallace aside, and said to him: I want to have some writing done. I want to change my papers. We have known each other a long time, and you know I am all right, and I want you to witness them. I am going to have Mr. Rogers come up to-morrow and write a will, and I want you to come up and witness it. I have some men up there working for me and I wanted them to sign it, and Mr. Rogers shook his head and said they wouldn't do because they were loose men and couldn't be found when they were wanted.' And then he said: 'It looked like a man ought to have the right to do as he pleased with his own property.' Mr. Wallace promised to go, and Mr. Linebaugh then sent word to Mr. Souers to come out as the other

witness.

said to her 'that his mother had given him his and he had burned them up;' and, further, he notes (the $11,000 worth previously mentioned) said that his pa had not acted right since her bye, and said they will meet again, pa has not mother's death. Since your ma told him goodbeen right since." Jeff denies this. On the night his father died Jeff (William) followed Dr. Gaugh from the house, and asked him if he thought the fire had anything to do with his father's sickness. The doctor asked him why he asked that, and Jeff replied, Ever since the fire, father has been very nervous and hardly fit to do business.' Jeff denies this."

Counsel for defendants not having been satisfied with the abstract of the record as prepared by counsel for plaintiffs, have brought up and printed several hundred additional pages, which have in no wise been challenged by counsel for the opposition; consequently we must, under the rules of this court, take said additional abstract of the record as being true. This additional abstract, taken in connection with that of the plaintiffs, presents a case for the defendants as diametrically opposed to that of the plaintiffs as the north pole is from the south; and, but for the extreme length of the statement of the case, which would be caused thereby, I would set out the substance of the defendants' evidence, or at least the facts it tends to prove, but the volume of it prevents my so doing.

"On Saturday morning at 8 o'clock Rogers arrived at the Linebaugh home to write the will. He was met at the door by Mrs. Linebaugh, and shown into the room where Uncle Jake was, and immediately began the writing of the will, and continued at that work until 3 o'clock in the afternoon. His story of that day's work fills 29 pages of the abstract, beginning at page 148. We shall not burden this statement with even a synopsis of this remarkable story of this man, but want the court to weigh its every line. To us it is a story past belief, and one which Rogers admits he thoroughly prepared himself to tell before he came to court, and it was manifestly overdone. Souers arrived at 2 o'clock, and Mr. Linebaugh met him at the door, telling him that he wanted him to witness the will because he was a good felConsequently, in order to comply with the low. He was immediately seated, and Rogers kept writing on the will. Between 30 and 40 spirit, if not the letter, of section 2088, R. S. minutes later Wallace arrived, and Rogers was 1909, regarding the statement of a case, I yet writing, and continued to write 2 or 3 min- will add that the evidence of the defendant utes after that, writing two or three lines on was equally, if not more, voluminous than the last page, probably the attestation clause. After Souers arrived not a word was said about that of the plaintiffs, and given by witnesses the contents of the will, and Mr. Linebaugh ¦ apparently as credible as those who testified

here to show that he either hated or disliked one of the proponents and wanting to prove that by his hearsay statements to the witnesses is something that you can't do, it would seem to me, but you have looked this up carefully, and are thoroughly prepared on it, and I am going to defer to your judgment, but it does look to me like, in the face of-unless you have gotten fresher decisions, you oughtn't to do it.

for the plaintiffs. The effect of their testi- | who are here wanting to sustain this will is mony was a direct and positive contradiction immaterial to you, and to try to get evidence in of the plaintiffs' evidence upon all material issues involved in the case not admitted. In other words, the evidence of the defendants tended to prove that the testator, at the time of making the will, was possessed of a disposing mind and memory, in that he was capable of comprehending the nature, character, and amount of all of the property he then owned; that he fully comprehended and understood all of the persons who reasonably came within the range of his natural bounty;

and that he was possessed of sufficient intelligence to understand his business and the disposition he was making of his property by the will in controversy.

Cook, Cummins & Dawson, of Maryville, for appellants. J. W. Perry, of Albany, Mo., and Shinabargar, Blagg & Ellison, of Maryville, for respondents.

WOODSON, P. J. (after stating the facts as above). [1] I. From the foregoing statement of the case, which I believe is as fair for the plaintiffs as the record will warrant, in my opinion, it warranted a typical case for the jury. If I correctly understand counsel for plaintiffs, they do not contend that the court erred in submitting the case to the jury, under the evidence introduced, but do complain that the verdict is against the weight of the evidence, and that the courti erred in rejecting evidence offered by plaintiffs, and in giving and refusing instructions

to the jury.

Under the view of the case I am satisfied that the evidence in the case presented a case for the jury, whether counsel for plaintiffs concedes it or not, and that the judgment

of the circuit court should be affirmed with

"By Mr. Cook: Well, I will let it go with Uncle Isaiah.

"By the Court: Bring in the jury. I wouldn't risk it if I were you."

In our opinion, the action of the court in excluding the evidence mentioned was properly excluded for two reasons: First, because hard or ill feelings against the proponents of the will could in no manner show undue influence in their behalf, and against the plaintiffs. If it had any effect, which, of course, it did, if it existed, it would have had the opposite effect from that contended for by the plaintiffs, namely, against the proponents, and not in their favor. And, second, because the record quoted shows that the circuit court, instead of excluding the evidence mentioned, admitted it as requested by counsel for plaintiff, and warned them that in its judgment the court was committing error in their favor, and that they must suffer the consequences if it was error.

There is no merit in the complaint.

[4] III. Plaintiffs or contestants next com

plain of the action of the trial court in not legatees took no part in the case, because permitting them to show that certain of the they had been offered a certain sum of money for not joining in the contest of the will.

After a careful reading of all of the record bearing upon that question, we are fully satisfied that the offer, if made, was in the nature of a compromise of the case, and not as bribery of witnesses. There is nothing out it erred in giving and refusing instruc-disclosed by the record which smacks of tions or in receiving or rejecting evidence. bribery or an attempt to bribe, but all shows [2, 3] II. Counsel for plaintiffs complain a desire to compromise the case and avoid of the action of the circuit court in excluding evidence offered by them tending to prove that the feelings of the testator were hostile to and unfriendly to some one or more of the proponents of the will, and refer us to the rulings of the court as stated on page 66 of plaintiffs' abstract of the record. That page reads as follows:

"By Mr. Cook: I think it is a matter that goes to the conditions of the old man's mind.

"By the Court: I am just suggesting that to you gentlemen in the face of these decisions. Suppose you got it now, and the case was before the Supreme Court, and you got it over their objection, would your verdict stand there? "By Mr. Cook: That is a matter we would have to take chances on.

"By the Court: Well, I am going to admit it, if you say so, and it won't affect me in any afterclap either. It is your fish-frying. In the first place, as I understand it, even these declarations for the purpose of showing the state of his affections with reference to these children must be the state of his affections with reference to these children that he didn't give anything to. Whether he hated or disliked the ones

family troubles, and keep out of court the sacred rights of family privacy, which are not only permissible, but encouraged and sanctioned by the laws of all the wisest govern

ments.

There is no merit in this contention.

[5] IV. The next complaint made by counsel for contestants is that the instructions

given by the court "to the jury for the proponents were misleading, voluminous, and confusing; taken as a whole are one-sided, unfair, and prejudicial."

Counsel do not undertake to point out or indicate in what manner the instructions given were misleading or unnecessarily lengthy, or did or could have confused the jury. The number and length of the instructions given, of course, depended largely upon the character of the case, the number of issues involved, and the collateral matters injected into it. After a careful reading of the instructions given for the proponents, in

the light of the matters suggested, I have abstract proposition of law, which, under been unable to see in what manner they are the rules of good practice, should never be susceptible to the criticisms suggested by given, yet I am unable to see what practical counsel for contestants. While numerous, harm could possibly have flown from this yet they are terse, clear, and confined to the instruction in this case. But, however that respective issues involved in the case, charac- may have been, the instruction as given is teristic of the learned judge who gave them. not so abstract as the quotation above would We are perfectly familiar with the cases indicate, which will be seen by reading it as cited by counsel for contestants supporting a whole. I once heard a minister state from their position, namely, Heman v. Hartman, the pulpit that if one should take only a 189 Mo. 24, 87 S. W. 947, and Sidway v. Stock Co., 163 Mo. 376, 63 S. W. 705, which announce a correct principle of law; yet by an examination of those cases it will be seen that they justly condemned the instructions given for the reasons complained of; but here no such reason has been suggested or pointed out.

This same question was presented to this court in the case of Crowl v. American Linseed Co., 164 S. W. 619, loc. cit. 626, and we there said:

"There can be no question but what an instruction may be so long drawn out, and deal with so many wholly unimportant matters, as to mislead and confuse the jury as to what are the real issues presented to them for determination." Citing Williams v. Ransom, 234 Mo. 66, 136 S. W. 349; Stid v. Railway Co., 236 Mo. 398, 139 S. W. 172; Gardner v. Metropolitan St. Ry. Co., 223 Mo. 398, 417, 122 S. W. 1068, 18 Ann. Cas. 1166. "But unfortunately for the respondent, counsel ** * * have not pointed out wherein this instruction is too long or wherein it was calculated to mislead or confuse the jury in that regard."

The same may be said of this case. Not only have counsel failed to point out the vices suggested regarding the instructions given in this case, but, after a careful reading of them, I have been unable to discover any of the evils the general complaint lodged against the instructions covers.

As was said, in effect, by Judge Lamm (the case in which it was said I have been unable to find), that when a complaint is lodged against an instruction given by the court, the complaining party should be required to point his finger to the particular error complained of, and that, if he fails to so do, then it is his and not the fault of the court should it fail to discover it, buried, perhaps, beneath a mass of evidence and issues not so familiar to the judges of this court as to the learned counsel who tried the case below and who presented the same here.

Viewing the case from this angle, I am of the opinion that there is no substance in this complaint, and that it should be and is ruled against the plaintiffs.

[6] V. Counsel next complain of instruction numbered 14, given in this language (quoting from plaintiffs' brief):

"They [the jury] have no right to inquire into or speculate upon the motives which caused him [the testator] to dispose of his property as set forth in his will."

In the light of the evidence of this case, even though we should consider the excerpt above quoted from said instruction 14 as an

part of the Bible in disconnected or isolated statements, and construe them alone, independent of their context, then he could show that the Bible authorized the doing of any and all things under the sun, and the prevention of the most innocent and useful things to man. He then gave a number of illustrations, most of which I have forgotten. However, I remember this one: That according to said disconnected selection he could prove that it was sinful to split rails, for the reason that the Bible said that whatsoever God had joined together let no man put asunder; therefore, God having produced the trees and timber from which rails are made, no one had the right to split or sever them. But there, if my memory serves me correctly, the Bible was speaking of marriage, and was enjoining man from separating man and wife.

This illustrates the point here presented by counsel regarding said instruction numbered 14. That instruction in full reads as follows:

"Unless the jury find from the evidence that Jacob Linebaugh, at the time he made and executed the will, was unduly influenced or coerced, as those terms are defined in these instructions,

or

was mentally incompetent to make a will, then the jury have no right to inquire into, or speculate upon, the motives which caused him to dispose of his property as set forth in the will; not unduly influenced in making it, he had the if he had the capacity to make a will and was right to dispose of his property in accordance with any whim or caprice which may have led him."

It should also be borne in mind that this instruction was one of a series given, as indicated upon its face, outlining the issues involved and guiding the jury as to the degree of mentality the law requires of a person in making a valid will.

With these facts in view, it seems perfectly clear to me that this instruction was intended to tell the jury that, if they believed and found from the evidence that the testator, at the time of making the will, was possessed of a sound mind and disposing memory, as required by law, as stated in other instructions given, then it was not the duty or province of the jury to seek for, and fish out, some plausible or reasonable excuse for giving the plaintiffs only $500 each, when he gave others, probably less deserving, much more. In other words, it told the jury that if the testator was of sound mind, and acted independently, he had the absolute right to do as he pleased with his own, and that the jury, in such case, had no right to inquire of

his motives when those facts were fully estab- | evidence of the truthfulness of the facts the lished in their minds. witnesses testified the testator said and did at the time is inadmissible.

"It was error to refuse plaintiffs' instruction No. 7. Plaintiffs were unable to prove that By reading the instruction it will be seen Mrs. Linebaugh or Jeff were present in the room at the exact time the will was written. Jeff's it in express terms is leveled at Mary Linewhereabouts on that day will remain a mystery baugh, the wife of the testator, and William until the last day; and Rogers, with loyalty J. Linebaugh, his son, and thereby, as I take to his work, and having prepared his story,

keeps Mrs. Linebaugh out of that room every it, the instruction was intended to be limited minute of the day. To meet that condition, and to them and their conduct alone. That be