BRACE, J.
This is a statutory proceeding instituted in the circuit court of Chariton county to contest the validity of an instrument of writing purporting to be the last will and testament of John W. Price, late of said county, deceased, duly admitted to probate in said county on the 28th of May, 1890, prosecuted by some of his heirs against a daughter of said deceased and her husband; the petition charging in substance that said
paper writing so admitted to probate as the last will of the said deceased "was not written or signed by the said John W. Price, and was not signed by any other person for him, by his direction, in his presence, as provided by law; and that the said paper writing, by reason of the matter aforesaid, is not the will of John W. Price." Upon this allegation issue was joined by answer, and the case came on for trial at the October term, 1891, of said circuit court. After the jury had been impaneled and sworn, and the statutory issue framed by the court, the defendants produced said instrument of writing, which is in words and figures as follows, to wit:
"I, John W. Price, of the county of Chariton, and state of Missouri, being of sound and disposing mind, and knowing that I have to leave this world, as all mortal flesh is doomed to do, I feel anxious to dispose of my entire estate after my dearth. In accordance with my well-matured determination I do hereby make, publish, and declare the following to be my last will and testament, viz.: In the first place, I bequeath my entire estate (except what I have already disposed of) to my wife, Mary E. Price, to use for the support of herself and the two youngest children, Mary Katherine Price and Wallace Powell Price. To my daughter Mary L. Harper I will one dollar, having advanced her her portion of my estate. To my daughter Louisa M. Walton I will one dollar, having advanced to her her portion of my estate. To my daughter Harriet A. Vergin I will one dollar, having advanced to her and her children their portion of my estate. To my son Elmer D. Price I give the south half of my Huss farm, and to my son John Walter Price I will the north half of the Huss farm. To my daughter Aurelia Harding I will 160 acres of land on Yellow creek, the numbers of which can be found in my tax receipts. To my son William W. Price I will one dollar, having advanced to him his portion of my estate. My home residence, which I have given my wife, Mary E. Price, a lifetime control and possession, I give to my two youngest children, M. K. Price and W. P. Price, to be equal heirs of all my land estate that I have not given away in this, my will, and also all the land I may purchase before my death. I will my stock, household furniture, farm utensils, and all the money I have not disposed of to remain as they are, for the use of the homestead as long as my wife lives; after her death to be divided between the two youngest children. I give Mary Katherine Price the home residence in an equal division of all my land that may be attached to the home tract or not otherwise disposed of, which I have heretofore stated my wife, Mary E. Price, is to control her lifetime. I give my wife one-third of my money after paying all my debts and what I have ordered in my will. I also appoint my wife executrix of my estate. I will that the probate court have nothing to do with my estate. Written this 18th of November, 1886. John W. Price. Witness: F. K. Venable. H. H. D. Moorman. John A. Broaddus. James D. Ingram."
— And in support thereof introduced the attesting witnesses, who testified in substance as follows:
James D. Ingram testified that he lived in Chillicothe, and in the winter of 1886 or 1887 he was at the residence of Mr. Price as a visitor. "In the morning, after breakfast, Mr. Price said: `I am very glad that you came. I have been wanting to see you. I wanted you to witness my will.' And he produced that paper; just handed it to me. I did not read it. He said that was his will, and, looking at it, I said, `You have already several names.' He said he wanted me also. I signed it, and he stated that was his will. The paper is in same condition now as then, with same names upon it. The name of John W. Price was to it then. I signed it as a witness. The other names are above mine. I signed it as a witness at Mr. Price's request." This witness on cross-examination testified that he was acquainted with the handwriting of John W. Price. The paper was not written in the handwriting of Mr. Price, nor was it signed in his handwriting. Witness thought both the body of the writing and the signature were in the hand of Mrs. Kendrick. When Mr. Price handed him the paper to sign as a witness he said it was his will. He signed it in the presence of Mr. Price.
F. K. Venable, another attesting witness, testified that he lived within half a mile of John W. Price, and knew him well. "Some time about the latter part of the year 1886, — I don't remember the month, — I was called upon to witness a paper presented to me as Judge Price's will. [Paper here exhibited to witness.] This is my signature attached to that paper. I did not read it. I only know that is my signature there. I only know this to be the same paper by the fact that I identify my signature. That is the only paper I ever signed for Mr. Price. I could not say whether the name of John W. Price was signed to it. I witnessed the paper he handed me and told me was his will. He told me that was his will, and I signed it." "Could not identify it only by my signature. If I am not mistaken, when he handed the paper to me he raised it up, and let it fall over, and told me that was his will, and that he wanted me to sign it as a witness, I believe. A day or two — probably three or four days — before that, he sent for me to come to his house when I had leisure. I went there, and he told me what his business was, — signing as a witness his will. I put my name there as a witness at his request, and in his presence." Did not see paper when written. Did not see him sign it. Did not know his handwriting.
J. A. Broaddus testified: "In the fall of 1886 — I don't remember the month — I was
called upon to witness Judge Price's will. [Here paper exhibited to witness.] This is the document I signed. Judge Price presented it to me. He said it was his will, and he would like for me to sign it as one of the witnesses. I signed it in his presence. I was there perhaps thirty or forty minutes. When I signed the paper I didn't see anything. It was folded up, and handed to me to sign. I didn't read it. I didn't look at it all. I think one or two names were there, perhaps, when I signed it. Dr. Moorman was one of the witnesses. This is my signature." Don't remember whether members of the family were there or not. Did not see Mr. Price sign the paper or write it. Was not present when it was written, nor when it was signed by him or by any one for him.
H. H. D. Moorman testified: "Am a physician. Practiced my profession at Dalton, Chariton county, for four years, commencing in the spring of 1884. Was well acquainted with the late John W. Price. During my practice at Dalton, was often called to visit him and his family professionally. Am one of the persons whose names appear as attesting witnesses to the paper recently probated as his will in the Chariton county probate court. I signed the paper at Price's request, and in his presence, but did not see him sign it, nor was his name signed to it by any other person in my presence. His name was already written at foot of paper when I first saw it. He handed me the paper, and said, `This is my will, and I want you to sign it as a witness.' He said he had it written, but I don't remember that he said by whom. He was then of sound mind."
The proponents then introduced in evidence the deposition of Sarah S. Kendrick, which, so far as it bears upon the present inquiry, is as follows: "Am sixty years old. Knew John W. Price well. He stayed a week here (at my house) a good many times, and I spent as much as two weeks with him a good many times. His wife was my stepdaughter. I knew him for eighteen years. Q. I will get you to state if, about the year 1886, or some time after that, you ever had any conversation with him about this will. A. Yes, sir, I was there. I do not know how long after he made his will. I could not say. He came in, and said, `Mrs. Kendrick, I have made my will.' I said to him, `Did you sign the will, Mr. Price?' He said: `No, I didn't sign it. I told Katie to write it, and I saw her do it.' Q. You [he] said, when you asked him whether he...
