If

ing about the matter. The testimony of the other attesting witnesses fell short of showing a duly-executed will. Their evidence shows a defective memory as to the whereabouts of the witness Claflin when the other witnesses signed, and they deny the presence of the other witnesses when he signed. Impeaching evidence was introduced affecting the weight of their testimony. That they all signed at the testator's request, in Claflin's store, and that Claflin was about there somewhere looking after his business, is apparent from the evidence. all of the witnesses were so situated that they might have seen one another sign, it is not material whether they did in fact or not. (Blanchard's Heirs v. Blanchard's Heirs, 32 Vt. 62.) As the case stood, the circumstances attending the signing by the witnesses were of much force, and might be controlling; for, "if all the subscribing witnesses testify that the will was not duly executed, the parties will be allowed to go into circumstantial evidence to prove its due execution." (Dean v. Dean's Heirs, supra.) Nor was this all. When the attesting witnesses are dead, beyond the reach of process, or from lapse of time are unable to recollect all the facts essential to a good execution, if their signatures and that of the testator are proved, an attestation clause showing a compliance with all the formalities required by law is prima facie evidence of the due execution of the will. (Chaffee v. Missionary Convention, 10 Paige, 85, 40 Am. Dec. 225; In re O'Hagan's Will, 73 Wis. 78, 40 N. W. 649, 9 Am. St. Rep. 763; Allaire v. Allaire, 37 N. J. L. 312; Farley v. Farley, 50 N. J. Eq. 434, 26 Atl. 178; Barnes v. Barnes, 66 Me. 286; 1 Redf. Wills, 238.) The evidence tends to show that the testator was accustomed to draw wills and to superintend their execution for other people before the execution of the will in question; and that he drafted his own. will here sought to be established, with a perfect attestation clause thereto, and superintended its execution, with full knowledge of the requirements of law for the due execution of such an instrument. This, of itself, raises a strong presumption that the known requirements were complied with. (1 Redf. Wills, 240; In re Alpaugh's Will, 23 N. J. Eq. 507.) ponents' case standing thus, it could not be taken and to order a verdict was error.

Judgment reversed and cause remanded.

With the profrom the jury,

In re BRYANT'S ESTATE.

[Supreme Court of Vermont, May 9, 1901; 73 Vt. 240, 50 Atl. 1065.]

Deceased was the aunt of plaintiff's husband, and had a standing invitation to visit them, and, when in ill health, requested plaintiff's husband to come and take her to his home, which he did, and she remained there several months, receiving much attention. Deceased frequently stated that the plaintiff would be well paid for her services, but did not make such statements to plaintiff, and there was no evidence that the latter knew of them or expected to be paid. Held insufficient to establish a contract to pay for such services which would support a claim against the estate of the deceased for the value thereof.

EXCEPTIONS from Windham County Court; MUNSON, Judge.

Proceedings to settle the estate of Salome T. Bryant, deceased. From a judgment affirming the disallowance of a claim filed by Ada L. Cleverly, the claimant brings exceptions. Affirmed.

Argued before TAFFT, C. J., and TYLER, START, WATSON, and STAFFORD, JJ.

D. E. Brong and Edward H. Deavitt, for claimant.

Tarbell & Whitham and William E. Johnson, for the estate.

STAFFORD, J.-This was an appeal from a disallowance by commissioners upon the estate of Salome T. Bryant, deceased, with a declaration in the common counts in assumpsit. The trial below was by the court, which found and filed a statement of the facts, and thereupon rendered judgment for the defendant estate. The claimant excepted, and the question here is upon the correctness of the judgment.

The

The deceased was an aunt of the claimant's husband. claimant and her husband lived together in the marriage relation at Lockport, N. Y., keeping house without servants, the wife doing the work, and the husband furnishing the supplies. Mrs. Bryant had never visited them during their residence there, but had had a standing invitation from both to do so. She had been employed in a training school connected with Bellevue Hospital, but had a house at Royalton, Vt., where she passed her vacations. She had a chronic disease affecting the kidneys, and, being worse in the summer of 1898, wrote the claimant's husband, requesting him to come to New York, and escort her to Lockport, which he did. She remained at their home from June 22d to September 20th, confined to her bed three weeks of the time, and so feeble the rest of the time as to require much care and attention. Her disease was such that she soiled the bed clothes and her own clothing, and these were washed by Mrs. Cleverly. While confined to her bed, she was watched nights, part of the time by the claimant and part of the time by Mr. Cleverly. The general care and attention was by the wife, with some incidental assistance from the husband. In speaking of what was being done for her, Mrs. Bryant frequently said that Mrs. Cleverly should be well paid for it. The other facts relate to the right of the claimant, as a married woman, to maintain this proceeding, and become immaterial in view of our decision.

If they do,

Do the facts found amount in law to a contract? the judgment was erroneous; if not, it was correct. It is to be observed that this is not a naked case of valuable services rendered upon special request, with no circumstances tending to color or qualify the natural and ordinary inference of an expectation to make and receive payment. The aunt did, indeed, send for the nephew to come and escort her to his home, but there is the qualifying fact that she had a standing invitation to visit them. It is found that she said the claimant should be well paid, but it is not found that she said so to the claimant, nor that the claimant knew of it or relied upon it, nor, indeed, that the claimant expected to be paid. If, from the facts and circumstances reported, the court had inferred and found the further fact of mutual expectation to pay and be paid, the contract would be complete; but such inference is an inference of fact, not of law, and could be made only by

the triers of the fact. In this respect the case is ruled by Bliss v. Hoyt's Estate (70 Vt. 534, 41 Atl. 1026). There, the referee having made such a finding as the court in the present case omitted to make, it was objected that such inference was an implication of law, and, therefore, beyond his province; but this court held it to be a finding of fact strictly and exclusively. The distinction between contracts implied in law and contracts implied in fact has been made so clear in recent decisions of the court that no further treatment of the subject can be necessary. In addition to Bliss v. Hoyt's Estate, already cited, see Johnson v. Railroad Co. (69 Vt. 521, 524, 38 Atl. 267); Westcott v. Westcott's Estate (69 Vt. 234, 39 Atl. 199); Parkhurst v. Krellinger (69 Vt. 375, 38 Atl. 67); Security Co. v. Bennington Monument Assn. (70 Vt. 201, 40 Atl. 43). We must assume that the court failed to find the fact of a mutual expectation of payment, because the evidence failed to convince it that it was true.

Judgment and certificate affirmed.

HAMBURGER et al. vs. RINKEL et al.

[Supreme Court of Missouri, Division No. 1, June 12, 1901; 164 Mo. 398, 64 S. W. 104.]

1. Where the evidence as to testator's mental capacity to make a will is conflicting, a verdict sustaining the instrument will not be disturbed. 2. Testator's parents and brothers and sisters died previous to his making a will. Testator was capable of attending to his business when not intoxicated. He and the beneficiary were intimate friends, testator being a frequent patron at the latter's saloon, and the beneficiary had loaned the testator money occasionally. When the will was executed testator gave it to one of the attesting witnesses, instructing him to deliver it to the beneficiary on testator's death. The evidence tended to prove that the beneficiary knew nothing of the will until testator's death. Held, that the question of undue influence on the part of the beneficiary over the testator was properly taken from the jury.

3. After adjournment of an action to contest a will, a juror accosted the beneficiary, and they were engaged in conversation for ten minutes, the subject of which could not be heard. The juror on the voir dire testified that he did not know the beneficiary. There was no evidence that the conversation was about the case, or that it was held under suspicious circumstances. Held, that it was not an abuse of the discretion to refuse a new trial.

4. Evidence of statements made out of court by some of defendants' witnesses, contradictory of their answers to certain questions asked them on cross-examination for the purpose of impeachment, was properly excluded.

5. The admission of evidence as to a testator's mental condition three months after the execution of the will, as tending to show his mental capacity at the time of making the will, was proper.

APPEAL from St. Louis Circuit Court; D. D. FISHER, Judge.

Action by Edward Hamburger and others against George W. Rinkel and another to contest From a judgment for de

fendants, plaintiffs appeal.

Affirmed.

will.

L. Frank Ottofy, for appellants.

Wm. B. Thompson and Ford W. Thompson, for respondents.

"St.

BRACE, P. J.- This is a statutory proceeding instituted in the Circuit Court, city of St. Louis, to contest the validity of an instrument of writing purporting to be the will of F. W. Hamburger, deceased, admitted to probate in the Probate Court of St. Louis on the 4th day of May, 1896, and which is as follows: Louis, Jany. 11th, 1896. I being a single man and of sound mind, I this day declare this my last will and testament. I appoint Adolph Rinkel administrator over my estate. After disposing of all my property, and paying my just debts, I bequeath to Mary Gains, my aunt; Ed. Hamburger, Wm. Hamburger, and Harry Hamburger, cousins; Mrs. Charlotte Henze, wife of F. W. Henze, my aunt; Fred Bartling, Henry Hamburger, Ernst Brocker, and Mrs. Tellkoeter, also cousins,- each and every one, one dollar ($1.00). If there are any other relatives that I have omitted, I

bequeath them each ($1.00) one dollar. The remainder of my