Vandagrift v. Masonic Home. that it afterwards permitted him to overdraw his personal account furnishes no legal ground for a recovery from this defendant or any other payee of the balance due said bank on the overdrafts made by Tygard. This seems to be the only manner in which Tygard conducted his business in the Bates National Bank so as to become its debtor. He did not rob the till nor purloin the money in its vaults. What he actually did, as far as this record shows, was the creation of accounts, personal and otherwise, upon which he made overdrafts which were not repaid. This undoubtedly left him a debtor for the amounts thus loaned him by the bank, but it did not make the persons to whom he paid the money either debtors to, or trustees for, the bank. As to such third parties, the maxim applies, Res inter alios acta alteri nocere non debet. [Broom's Legal Maxims (8 Ed.), p. 954.] Our conclusion is that the undisputed facts in this record, which we have re-examined (since the case is one wherein a compulsory reference might be ordered, Williams v. Railroad, 153 Mo. 1. c. 495) clearly sustain the deductions of the referee, that the Masonic Home stood in no relationship either of knowledge or conduct which rendered it liable to account for the money paid out by its treasurer on its behalf in the discharge of his duty to account for funds entrusted to him. This disposes of this appeal and renders it unnecessary to discuss the applicability of the rule enounced by a divided court in Newell v. Hadley, 206 Mass. 335, as to the measure of responsibility incurred by the principal where his agent has stolen the money of another to repay a theft from his principal, and suit is brought by the third party to recover from the principal. The proposition that the owner of personal property which is subject to identification, does not lose Hayes v. Hayes. his title thereto by the act of one who steals it and sells it to an innocent purchaser, is fundamental in the law. The doctrine, however, on grounds of public policy and business necessity cannot be applied to unidentifiable money which has been received in good faith and for value by a payee of the person who obtained it by theft. But the case in hand does not call for the application either of the rule or its modification, for the facts necessary to support the legal theory on which appellant asks the reversal of this case are essentially lacking in the record before us. The judgment of the trial court was manifestly for the right party and is affirmed. Brown, C., con curs. PER CURIAM.-The foregoing opinion of BOND, C., is adopted as the opinion of the court. All the judges concur, except Graves, P. J., not sitting. HIRAM HAYES et al. v. LOARN HAYES et al., Appellants. Division One, March 29, 1912. 1. WILL CONTEST: Action at Law: Practice: Undue Influence. A suit to set aside a will for undue influence is an action at law, and where there was any material evidence tending to prove plaintiffs' allegation of undue influence, the case was one for the jury. 2. : Undue Influence. Undue influence means the substitution in a will, when executed, of the will and purpose of some person other than the testator. The allegation of undue influence as the sole ground of attack upon a will implies intellectual competency on the part of the testator except for the dominance over his mind and intentions in the disposal of his estate of a stronger will or different purposes from what he would have expressed if left to his own guidance. 3. 4. Hayes v. Hayes. Partiality and Prejudice of Testator. Proof of a father's partiality and prejudice as regards his childrensuch partiality and such prejudice, that is, as are not engendered by craft or fraud and which do not subdue his mind and free agency is not sufficient to set aside his will made under the influence of those emotions. Nor would it alter the case that such emotions were unjustly harbored. : Right of Alienation. The absolute owner ship of property implies the right of arbitrary disposition of it according to the loves, hates or caprices of the grantor. The only limitation of the power of the owner to alienate his property (aside from coercion, fraud, or lack of mentality) exists when the instrument of conveyance was made at a time when the volition of the grantor was so far destroyed that the instrument expressed, not his own intentions and wishes, but the different designs and objects of those who controlled his actions. 5. PRECATORY TRUST: Terms. In order to imply a trust from the use of precatory words, the terms employed for that purpose must be inserted in the will or other instrument of settlement, and used in an imperative sense as to a certain subject and a certain object or person. 6. EVIDENCE: Remarks of Testator: Undue Influence. The testator's remarks, made at various times not contemporaneous with the making of the will, that the reason he did not give anything to his other children was to keep down dissensions in his family, were evidentiary only of the testator's state of mind, not of the truth of the things stated; and such remarks cannot be taken as proof of undue influence. 7. WILL CONTEST: Undue Influence: Material Evidence Reviewed. Held, that there was in this case no evidence of undue influence exerted upon the mind of a testator when he made his will. Appeal from Barry Circuit Court.-Hon. F. C. Johnson, Judge. REVERSED. W. P. Sullivan, G. Purd Hays and T. D. Steele, for appellants; James T. Neville of counsel. (1) An attack upon a will on the ground that it was procured by undue influence necessarily assumes the existence of a will otherwise valid and regularly Hayes v. Hayes. executed. Upon this issue therefore, the burden of proof is on the contestants. Jones v. Roberts, 37 Mo. App. 163; Carl v. Gabel, 120 Mo. 283; Morton v. Heidorn, 135 Mo. 608; Doherty v. Gilmore, 136 Mo. 414; Campbelle v. Carlisle, 162 Mo. 634; Schierbaum v. Schemme, 157 Mo. 1; King v. Gibson, 191 Mo. 307. (2) Mere undue influence is not sufficient; to invalidate the will such influence must be so exercised as to result in the will made, and will not do so then, if such influence was of a wife or child and was exercised in a fair and reasonable manner, without fraud or deception. Crowson v. Crowson, 172 Mo. 691; McFadin v. Catron, 138 Mo. 197; Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Jackson v. Hardin, 83 Mo. 175. (3) When proponents have made out their prima facie case, it then devolves on contestants to prove undue influence by substantial testimony, failing in which, the court should direct a verdict for defendants. Sehr v. Lindemann, 153 Mo. 276; Schierbaum v. Schemme, 157 Mo. 16. It was the duty of the trial court to give a peremptory instruction to the jury to find in favor of the will where a prima facie case was made by the proponents and there was no substantial evidence to sustain the contest. Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Sehr v. Lindemann, 153 Mo. 276; Winn v. Grier, 217 Mo. 420; Fulton v. Freeland, 219 Mo. 494; Gibony v. Foster, 230 Mo. 106; Mackall v. Mackall, 135 U. S. 167; Martin v. Bowdern, 158 Mo. 379; Catholic University v. O'Brien, 181 Mo. 93; Schierbaum v. Schemme, 157 Mo. 22. (4) Statements made by the testator, both before and after the execution of the will are admissible as evidence of the testator's mental condition and the state of his affections, but such statements are not admissible as proof of undue influence, Hayes v. Hayes. nor of the truth of the facts narrated. Crowson v. Crowson, 172 Mo. 691; Techenbrock v. McLaughlin, 209 Mo. 533; Seibert v. Hatcher, 205 Mo. 83. J. J. Gideon, G. A. Watson, J. S. Davis and James George for respondents. The court did not err in refusing the mandatory instructions at the close of the plaintiff's evidence and at the close of all the evidence. The question of undue influence was the only question submitted to the jury, the question of want of testamentary capacity having been eliminated at the commencement of the trial. There was abundant evidence to justify the court in submitting this question to the jury. The defendants did not stand upon their demurrer but joined the plaintiffs in submitting this question in their instructions. We understand the rule to be that the trial court cannot be convicted of error when, after demurrer to the evidence has been overruled, the defendant requests and obtains instructions submitting the issues to a jury which finds against him. This is certainly so where there is evidence to sustain the verdict. Crum v. Crum, 231 Mo. 636. BOND, C.-This suit is to set aside, for undue influence, the will of W. R. Hayes, who died March 22, 1907, leaving a second wife, Adaline Hayes, seven children and one grandchild, the descendant of his eighth child; all of whom are parties plaintiff and defendant to this suit. The will in dispute was formally executed August 4, 1898, and purported to devise to the said widow and one child (Loarn Hayes) all the real and personal estate of the testator. The remaining six children and the grandchild are expressly named in the will and excluded from any share in the property therein devised. There was a mistrial in Christian county, and a change of venue to Barry |