Wagner, Judge,
delivered the opinion of the court.
The instructions given by the court on the trial of this cause ’Were unexceptionable, provided there was evidence sufficient to *211justify them. When this cause was here before w.e held that a transaction like the will in question, between a guardian and ward, could not stand if the period between the making of the will and the coming of age of the ward was short, unless the circumstances showed in the most satisfactory manner, and beyond a reasonable doubt, the most entire good faith on the part of the guardian. (Garvin v. Williams, 44 Mo. 465" court="Mo." date_filed="1869-10-15" href="https://app.midpage.ai/document/garvins-admr-v-williams-8002665?utm_source=webapp" opinion_id="8002665">44 Mo. 465.) When a ward has but recently arrived at age, any acts of his conferring an advantage or bounty upon his late guardian excite the strongest suspicions, and are viewed by the courts with an almost invincible jealousy. They are considered as constructively fraudulent on account of the confidential relations existing between the parties. They are withdrawn from the operation of the ordinary rules of evidence, and the burden is devolved on the beneficiary of showing that the gift or arrangement was fair and conscientious and beyond the reach of suspicion. A rule of public policy and pure morals lies at the foundation of this -principle and demands its stringent enforcement. Any one occupying a fiduciary relation so recently that the influence is presumed to still exist cannot avail himself of a bounty from his late ward, or other person holding the relation, unless there is clear and distinct evidence that the influence has determined, and that the donor acted in a manner perfectly free, independent and unbiased. And the beneficiary must in all instances furnish this evidence. That it is not easily attainable I am aware, and therefore learned judges have said that it was almost impossible to make this proof. I have in vain searched this record to find any evidence introduced by the defendants, the beneficiaries in the will, to overthrow and repel the presumptions which the law raises that the will was procured and made while the testator was under the immediate influence of those who were to be benefited by it. Without that evidence the will cannot stand. It is not a question of the weight of evidence, with which we would not interfere, but it is a case of an entire want of evidence. The instructions, therefore, given for the defendants, while good enough as abstract propositions of law, were erroneous because there was no evidence to support them. This must lead to a reversal of the case.
*212But there is a question presented by the record in respect to the action of the court in rejecting certain evidence offered by the defendants. On the trial some of the beneficiaries under the will, and who were parties to the suit, were introduced as witnesses, but they were objected to, and the court ruled that they were incompetent. Exceptions were duly taken.
For the appellant it is insisted that the court committed no error in holding that the witnesses were incompetent to testify, and the argument is based on that section of the statute which allows parties to give evidence, but provides “ that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or shown to be insane, the other party shall not be admitted to testify in his own favor.” This question has never been raised before in this court, under the statute. In the case of Tingley et al. v. Cowgill et al., 48 Mo. 291" court="Mo." date_filed="1871-08-15" href="https://app.midpage.ai/document/tingley-v-cowgill-8003259?utm_source=webapp" opinion_id="8003259">48 Mo. 291, all the parties to the record, both the contestants of the will and those who took under it, were admitted to testify, and the point was not even made or alluded to. The cases cited to sustain the ruling of the court are adjudications where either the estate of the deceased person was' a party, or where the contest arose out of some contract or agreement with the deceased in his lifetime, and in which his assignee or representative was a party.
But proceedings in reference to the establishment or invalidating of a will stand on a different foundation from ordinary actions at law or causes of action. They are of the nature of a proceeding in rent, and simply amount to a revival.of the same matter in the Circuit Court which has been previously had in the County Court. The same legal rules that govern the investigation in the County Court apply in the Circuit Court. The heirs at law and devisees are made nominal parties, but in truth the proceeding is ex parte and all are competent witnesses. (See Dickey et al. v. Malechi, 6 Mo. 177" court="Mo." date_filed="1839-09-15" href="https://app.midpage.ai/document/dickey-v-malechi-6610131?utm_source=webapp" opinion_id="6610131">6 Mo. 177.)
The section in our statute, now under consideration, is a precise and literal copy of the statute of Massachusetts, and in that State the question has been directly passed on, and received a definite construction. The case arose upon contesting the will of Miss Bumstead. Shailer and Hayden were devisees under the will, and *213also executors, and it was alleged that they procured, the will to be made by undue influence and fraud. Upon the trial they were permitted to give testimony in their own behalf. This was assigned for error. The Supreme Court, in reviewing the question, say: “ It was further objected that Hayden and Shailer were not competent witnesses under the statute, but this-is not a case where one of the original parties to the contract or cause of action, in issue and on trial, is dead. They are not parties in a representative capacity; there was no cause of action in existence till the death of-the testatrix. The controversy is between living parties. The testatrix is in no sense a party to the original cause of action. Her act was only the subject-matter of the investigation. The rule contended for would exclude parties on both sides in all cases where litigation should arise growing out of the act of another during life. We cannot construe the proviso of the statute so as to exclude as witnesses all those who may be parties on one side or the other in all probate appeals like this, and we find no error in the ruling.” (Shailer v. Bumstead et al., 99 Mass. 112" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/shailer-v-bumstead-6415297?utm_source=webapp" opinion_id="6415297">99 Mass. 112.)
With this reasoning we are satisfied. The real question in the case is whether there is a will or not, and upon that question all the parties have a right-to testify;
We think the court also erred in excluding parts of the depositions of Steele and Eliza Garvin, offered by the plaintiffs. They were both upon questions concerning which the defendants gave testimony, and were properly explanatory of and connected with that testimony. The statement of Steele was material, and when he says the invitation of Williams was in a cool, formal and distant manner, I think the description was sufficiently particular.
That portion of Eliza Garvin’s deposition which mentioned the kindness of Mrs. Garvin for Petticrew, the testator, was certainly competent. The whole theory of the defense, funning throughout the trial, was that she cared nothing for him. The plaintiffs were entitled to the evidence to show its falsity.
For the ruling of the court in rejecting testimony, the judgment must be reversed and the cause remanded.
The other judges concur.