*1 745 сhargéd, and it was admitted of Public Service Board f passage The proposed recommended o ordinances: charter declared such a necessary prerequisite recommеndation to be a validity of the ordinances. essential Since this preliminary step taken, nullity. was not the election would a In such been have enjoin a a power calling equity situation court оf has of thereby holding taxpayers expense an election and of save Hall, election. rel. N. 159 N. useless ex v. 35 D. W. [State 281; City Petersburg al. (Fla.), State ex rel. v. et 145 of St. So. 110; 175; Roper Hathaway Gilley Lumpkins (Tex.), & v. 163 W. City Supp. 695; of 266 N. Y. 148 Misc. Oneonta, Griffith Education, 10; 183 112 E. City et al. Board of N. C. Murray Irvan, Ky. 290; al. v. W. 170 et 185 S. Cascaden City Iowa, N. Waterloo, 673.] Education, supra, et
In the case of Griffith al. v. Board of court said: injunction will generally
“But that an issue restrain it is held it, calling holding authority there is no an election where election holding result waste of such where 304; Fleming, 34 N. 51 W. Neb. public funds. [Solomon ” R, L.C. Bohling, CC., concur. judgment Cooley affirmed. C., is foregoing оpinion PER CURIAM.:—The by Westhues, judges All the concur. court. adopted as Joseph Casey, Ludwig, June Martin Platt, Platt, Pearl Carl Daisy through Next by Platt, Platt, Robert Platt Camp and N. Tillie A. Friend, Rebecca Weber, Sam Respоndent . 123 S. W. Appellants, Platt, bell, Two, 20, 1938. December
Division *2 Max H. Henry appellants. Haas and Furth for . respondents Patrick A. Marcella from Proceedings certain deeds BOHLING, to cancel C . Campbell, Platt, wifе, A. N. Eebecca Tillie Platts, hus- back to said Campbell conveying property said said band wife. gland November prostate cancer of
William Platt died from were transactions age sixty-two. cаncellation of nisi 11, 1935. The court decreed on October *3 deeds. the owned first wife the married. Platt twice He and was Mrs. Platt entirety. first by The estate the
real involved as tenants marriage. The second in 1926. No were born of the children died wife, by his first Platt children of Mr. in interest The parties are: gran- his widow and Platt, as here; second Mrs. respondents the and Campbell, appel- deed, N. Eebecca Cаmpbell-Platt and in the tee here. lants
Appellants respondents contend substantial adduced no evidence to sustain the decree nisi-, in fact, against that said decree all is the probative in ease. evidence the
The purpose of Platt-Campbell was transactions cre an by ate estate entirety in Mr. Platt. Mrs. and Mrs. Platt makes no contention that the transaction suppоrted by is a valuable consideration. legal There is no presumption against validity any provisions of may a husband make in (White his wife’s favor McGuffin (Mo.), 226, v. W. 246 S. 231(2); Reed, Chadwell v. 198 Mo. 233) 359, 379, 227, ; W. conveyance and a is not invаlid solely during because it was grantor’s executed last (con illness Armstrong sult Hamilton (Banc), 622, 597, 623, 120 Mo. 25 S. 550). 545, Eespondents say some of attending circumstances strange; the transactions referring seem failure of Mrs. Platt respondents thereof, to inform Mr. and to make pro Platt’s failure daughter. However, for a minor respondents vision expressly dis having avow sufficient any adduced evidence to make an issue on fraud, trickery, influence, case, undue et cetera. therefore, The grantor by weakness, not one where a reason of mental amounting not incapacity, advantage mental takеn through was inequi some incident, which, when considered in table connection with such mental infirmity, equity sufficient of a court for the intervention cancel Respondents the instrument seek to sustain involved. solely incapacity instant of Mr. mental decree issue Platt’s to make a deed of the of the transaction. Chadwell time [Consult Reed, supra.] directing specific passages Respondents, without our attention to Ludwig mentioned, say respondents’ lay from cases witness Pearl Ramage, 65, 82(II), (2d) Mo. 3 W. inning [V 456; 44 (2d) Mo. S. W. Schwan, 719(3)]; Kadlowski Schoetter 642(6) respondents’ expert witness Dr. [Fields gave sub Luck, 39(3)], 74 S. W. 775(2d), 335 Mo. men Mr. Platt was affirmative, thаt stantial, evidence probative transactions. tally time of the incapacitated (sufficient testimony affirmative was In each the cited cases there whose person citations, supra) ly local our indicated incapacitated as of questioned was capacity mental involved. time of the transaction
Appellants’ abstract presents testimony largely narrаtive in form, respondents but have not filed at- abstract or .additional ’ tempted point so; appellants out wherein abstract if insufficient, they question sufficiency. and we understand do not its The recоrd us showing before mental'incapacity parity does contain on a by respondents. that found in the on cases relied Dr. Schoetter Mr. Platt attended from June until first Platt’s death. hypodermic was administered June we understand this witness the administration of narcotics stead- ily increased; time which to form plenty habit; the narcotic under the influence of narcotics he was *4 they gradually were he died. аffecting body more and more until his mid- daily Dr. Mr. Platt from the Schoetter testified he saw almost but, to September; asked, give as dle when to refused 1935, October.il, Mr. would stating Platt’s mental condition on that be for him all he that he a lot say to and knew was difficult to affirmatively . . [referring narcotics. He testified: “. he his like, be he have Mr. delirious the and would and Platt] moments, heavy . . are even under moments. . There lucid lucid ’’ narсotics. her daughter, being Mr. asked how Ludwig, Pearl Platt’s replied: “I know if he October don’t father around acted again I not; think he and then don’t. I did knew me or sometimes condition; physical how father’s he her .” tеlls of . . Witness also facts weaker. She narrates gradually became strength and lost at times. if was delirious Asked conclusion he justifying the “Well,- him, testified: she around going on whát was father knew 749 I was gave narcotics, upstairs there times, only at I him the times shop. ... particu- the I his condition recall on that don’t ’ ‘‘ ’ ’’ day, day lar Speaking previous 11th of his October, condition, “Well, day appeared just said: about the every she he ’’ day. if every And, me. He he was same to was not delirious asked “talking” previous “No, around two weeks to his death: that was weeks, right any- three really around and wasn’t and didn’t know he thing death, he from that time until as the influence his was under of narcotics.” only present witnesses at execution competent.
transactions all testified Mr. Platt was then Mrs. notary Gantner, who went acknowledgments, took thе who Haas, handling transactions, Platt Mr. to the the attorney Mr. that home, greeted Haas; testified Platt Mr. Mr. Platt and that quite Mr. Mr. little; Mr. Haas Haas talked that read deed sign it not Platt; Mr. his Platt said he wanted so wife would Mr. hаppened him; have if any anything trouble and that acknowledgments. signed Mrs. took their and witness deed perfectly Mr. Mr. memory Haas testified Platt’s seemed “mind clear;” perfectly mentality “as far his he was а concerned, October;” “yes, on the 11th he he was normal man knew what ’’ doing. respondents’ Respondents sponsors Haas was witness. stand credibility. throughout for his the time He consistent mentally competent. Platt was In the of countervail- absence ing testimony respondents successfully may invite this court disregard Harrington (Mo.), Bank evidence. [Manchester 242, 248(3); Co., 199 207 S. W. Louis Mo. Rodan St. Transit S. W. Rogers (Mo.), 38, 39(3), “It im 187 S. W. states: Bross рossible pointed by appellant, circumstances out as car to view the prescribed law other to set or rying proof-power aside deed circumstances, equity. In such whatever thе instrument solemn showing establishment of a whether trust or specific grounds, deed, impeach of a other procuring any in the or of fraud and deceit exception, proof justify is, method, rule without ing cоnvincing, clear, of the court must so part on the such action reasonable any doubt in the mind of to exclude complete as Husband, also Stubblefield Mo. chancellor.” [See Field, 419, 423(3); Robinson Mo. 106 S. W. *5 ; S., 315(9) p. 71; J., p. 12 C. J. sec. C. (2d)W. 1254, sec. all, opinion preponderance, if not of the testi
We are capacity established Platt’s mental value mony probative having Platt-Campbell testimony to execute the does deed. Dr. Schoetter’s respondents. not aid only express He not refused to his on Mr. tes day Platt’s mental question, condition on but with moments, supplemented tified had his lucid which he heavy are lucid even narcotics.” moments, statement “there under Ludwig’s testimony The probative of Pearl was diminished value she every day; father by testimony her that her was not delirious 11, 1935; by not recall on Dr. Schoet did condition October testimony respect Ludwig with to “lucid moments.” Mrs. said ter’s present only when father. she was she administered narcotics to her tendency She away question. witness a to This drift lay incompetency, mental witness. Her conclusion as to was by supported value, had facts inconsistent possess probative be Fry, 1144(1), 341 Mo. capacity with mental [Nute far not, (2d.) 84, 87(1, She claim to did did not so 2)]. necеssary qualifications discloses, possess record testimonial as the mind. expert the effect narcotics on human on witness times warranting She testified her conclusion that at to facts stated delirious, mentally to no incapacitated, her father but she testified (read lay which as witness fact to substantiate her conclusion ing light testimony respondents) in the most favorable anything” after Oc reаlly right “he or wasn’t and didn’t know on from the Any permissible inference tober drawn sufficient, possess testimony of Mr. Platt did these witnesses that nature mentality time the transactions understand their by destroyed respondents’ witness Haas’ testimony effect he time on October at the Mr. Platt was normal testimony His and cov d.e'ed. is direct executed by testimony It exact involved. stands uncontradieted ers the time value, wit apрellants’ is corroborated equal probative nesses. nisi, judgment therefore, directions to dismiss reverse
We, CC., Westhues, Cooley and concur. bill. respondents’ foregoing opinion by Boi-iling, C., PER CURIAM: —The adopted All judges concur. the court. opinion of as the