*312DISSENTING OPINION.
LAMM, J.The following divisional opinion, handed down in Division No. 1, is refiled as a dissenting one In Banc by Lamm-, J., with some changes to fit it for its new use:
Plaintiffs appeal from a decree in Division No. 2 of the Jasper Circuit Court.
The petition was under section 650', Revised Statutes 1899, and had for its purpose to try, ascertain and determine the estate, title and interest of the minor plaintiff, Wallace, and Mrs. Huling, and of the defendants, respectively, in lots 5 and 6, School Addition to the city of Carthage. It counts on the theory that Mrs. Huling and her coplaintiff, out of possession, were the owners in common of said lots, subject to the life estate of one Ann Kendrick, by virtue of the will of W. L. Burlingame, deceased; that defendants are in possession; that defendant, Ellen, claims under a deed made by one Rosanna Burlingame (known in the record as Rose); that such claim is adverse and prejudicial to plaintiffs; and that said deed is a cloud on their title.
By way of answer and cross-bill, the facts of the controversy were more fully developed, as follows: It is charged therein that said lots belonged to W. L. Burlingame; that by his will duly probated he devised them to his wife, Rose (Rosanna), for her life, with full power and authority to dispose of them for “her necessary comfort and support;” that testator died in 1901 leaving Rose surviving him as his widow; that she was a confirmed invalid, the particulars of her infirmities being set forth, and required the care due an infant; that in January or February, 1902, she was brought to defendant’s home in Vernon county (a small fruit farm close by Nevada) and was there cared for by them until in September of that year; that it was impossible to secure the services of a stranger to per*313form the duties of nursing and caring for her; that defendant, Ellen, was a sister of Rose and wife of her codefendant,- Thomas; that in this condition of things Rose “insisted and begged the defendants to undertake the care, nursing and protection of the said Rose Burlingame during her natural life, and to induce them so to do and to induce them to sell their farm in Vernon county, Missouri, and move to Carthage, Jasper county, agreed, in consideration thereof, to make, execute and deliver” to Ellen a deed to said lots; that defendants agreed to this and in pursuance of such contract sold their farm in Vernon county, came to Carthag-e, the home of Rose on said lots, and remained theré until Rose’s death in 1904, and in every way faithfully and fully performed said contract, “at all times waited upon her, nursed her, dressed and undressed her, put her to bed and lifted her out of bed and tended to her necessary wants, administered medicine, wheeled her about the house and out of the house into the air and sunshine from day to day;” that the defendant, Thomas, was compelled to abandon his business in order to carry out said contract, and that both Thomas and Ellen devoted all their time, energy and attention to Rose; that in pursuance of said contract, on the 15th day of January, 1903 (some four months later), Rose executed to Ellen a deed conveying said lots to her absolutely, duly acknowledged and recorded, made by Rose as owner and in execution of a power granted by the will of her said husband for “her necessary comfort and support;” that by said deed the defendants hound themselves from its date to the end of the life of Rose to live with, nurse and care for and in every way administer to her comfort without any charge other than said conveyance; that the said conveyance was made on a good and valid consideration and that the onerous services performed by defendants during the life of Rose plus the expenses of her sickness and funeral and her debts and obligations due at *314her death, amounting to a large sum of money, greatly exceeded the value of the real estate conveyed to Ellen; that defendants in good faith made permanent and lasting improvements oh the real estate, built an additional dwelling house thereon at a large outlay of money and greatly enhanced its value; that “this was done with the full knowledge of the said plaintiffs and without objection by them and the said plaintiffs permitted the defendants to proceed to make large outlays of money in repairing the buildings on said premises and in erecting the new building on said premises without objection.” The prayer of defendants’ cross-bill was that the deed from Rose to Ellen he decreed valid and to vest in Ellen the title in fee simple; that plaintiffs be adjudged to have no title and be estopped from hereafter claiming any, etc.
The cross-bill has an alternative prayer to the effect that if the deed from Rose to Ellen be found ineffective to vest the fee simple title in her, then that an account be taken of the value of the services rendered by defendants to Rose during her life and the value of improvements put by defendants on the lots and of all taxes paid and of money outlays by defendants for funeral expenses, debts and obligations of said Rose, and that the amount found by the court to be due on such account be declared a lien on the lots, that they be sold and out of the proceeds defendants be paid the amount so found due.
The merits of the controversy are further developed by the reply, in the nature of an answer to defendants ’ cross-bill, as follows in substance: Plaintiffs admit the intermarriage of W. L. and Rose Burlin-game; that Mr. Burlingame was the owner of the lots in controversy and died in December, 1901, leaving Rose his widow; that she signed and acknowledged a deed purporting to convey the lots to Ellen, which deed is recorded; that at the time Rose signed and acknowledged the deed she was sick in body and mind; that *315Ellen and Thomas were her confidential advisers; that they took advantage of her sickness and weal? and feeble condition of body and mind and induced her to sign and acknowledge said deed by encouraging her to believe that such act was necessary for her comfort and support, when in truth and in fact she was well provided for and had an income abundantly sufficient for her necessary comforts and support; that under the will of "W. L. Burlingame the lots in controversy were given to Eose “for and during her natural life ’ ’ and that the power to dispose of them, given by the 'will, was limited to her life estate, for her necessary comforts and support and that other property was bequeathed and devised to Eose by said will with the same power of disposition; that after testator’s death defendants, being the confidential advisers and nurses of Eose, managed her business affairs and that a large amount of money was expended by Eose, to-wit, $6,000, for the comforts and support of defendants and for her own support and maintenance during the short period of less than three years she lived after the death of her husband; that all the personal property left by Eose passed into the hands of defendants after her death; that they had been well and fully paid for nursing and caring for her; that if the defendants have made improvements on the property it was done with notice and knowledge of plaintiffs’ interests in it and that the same were paid for out of W.. L. Burlingame’s estate; that if improvements were made by defendants, plaintiffs had no knowledge they were being made and that when made, if at all, the plaintiff, Mrs. Huling, was and still is a married woman, and the minor plaintiff was and now is an infant; that after and prior to the time of the contract and deed referred to in defendants’ cross-bill Eose had sold a large amount of real property belonging to the estate of her husband, thereby realizing from $3,000 to $3,500 in cash; that the *316remainder of the real property was rented fox about $125 per month; that Rose was about sixty-six years old; that said cash and income were more than sufficient to provide for her then existing and prospective wants necessary for her comfort and support; that, even if she had the power under the will to dispose of the real estate in controversy, it was not necessary to do so at the time and never became necessary; that she lay under a duty by virtue of the will of her husband to exhaust said rents and cash before disposing of the lots; that defendants had knowledge and notice of said facts at said time; and that in violating said duly Rose perpetrated a fraud against plaintiffs and defendants participated therein; that said conveyance was not reasonably necessary in order to provide for the comfort and support of Rose; that it was not made and received in good faith for such purpose, but was made and received by the parties thereto for the pul-póse of cheating and defrauding plaintiffs and other legatees under the will, and that the parties to said deed confederated and conspired together for that purpose; and that defendants are not entitled to have the value of their services in ministering* to the comfort and support of Rose and the value of the improvements made charged as a lien on said property. As an additional ground why there should be no such lien decreed, it is alleged that under the will of W. L. Bur-lingame his sister, Ann Kendrick, now alive, has a life estate in the lots; that she claims such life estate and is not a party to this suit. Plaintiffs, denying all other averments in the cross-bill, allege that the defendants have no equitable interests in the property and they pray the court to decree their deed fraudulent and void.
The chancellor, deeming plaintiffs’ petition a bill in equity, dismissed their “bill,” and found the issues raised by defendants’ cross-bill and plaintiffs’ reply and answer thereto in favor of defendants, decreeing *317that defendant, Ellen, is the owner in fee-simple of the lots and that plaintiffs have no right, title or claim therein and that they be forever debarred and estopped from claiming any.
The case on the facts is this: W. L. Burlingame and Bose, his wife, had long resided in Carthage. He was over seventy, was not a strong man, but handicapped by the infirmities of age and subject to heart disease. She was born in 1836 and was the rise of sixty-five years when her husband died. For years prior to his death she had little, if any, use of her lower limbs. Lay witnesses speak of them as “paralyzed.” Added to this she was óf a dropsical turn and weighed about two hundred pounds. Neither did she have, at least during the last years of her life, full use of her hands and arms, but her vital organs seemed sound. The paralysis affected her bowels somewhat. Her condition required an attendant and, up to the time of her husband’s death, to-wit, December 18,1901, he, with a servant (Miss Eicholz), attended to her wants and ran the household establishment, the servant receiving $3 per week. The old couple were childless and lived comfortably in one of their houses on a pension "of $24 a month and the rents of Mr. Bur-lingame’s other real property, and saved up money. He owned the lots in controversy, on which were two dwelling houses — one their home, the other rented; also a half interest in an opera house property, consisting of an opera house in an upper story and two or more business rooms below. He owned, besides, a vacant lot in Carthage and several tracts of land in Jasper county, aggregating, say, 144 acres, the latter, however, affording very little net income. As usual in such cases the estimates of witnesses on values of real estate varied, but, we take it, a reasonable estimate of the real estate under all the evidence, would be from $20,000 to $24,000 — more likely the latter. In this estimate his half interest in the opera house represents *318one-half of said aggregate. There is some confusion in the testimony on his rental income, but as near as we can get at it, it was the rise of $100' per month and this, with an increase, continued after his death. In addition he died owning personal property appraised at $1,472.11. Of that amount $1,097.11 was cash in bank. At his demise he. owed a few current debts—the exact amount not disclosed, but they were small. Mrs. Burlingame had no property except her wearing apparel and a bit of jewelry.
In May, 1901, Mr. Burlingame made his will. His wife had relatives but he ignored them altogether in the disposition of his property. He had a sister living, Ann Kendrick, and two nieces, daughters of a deceased sister, Birdie (known as “Bertha”) Huling and Florence Griffin, both married women residing at Grand Rapids, Michigan. Ann Kendrick’s residence is not shown but we infer she, too, was a non-resident.
Omitting the formal parts of his will, it reads as follows:
“First: It is my will that all my just debts be paid out o'f my estate as soon as may be after my death.
‘ ‘ Second: I give and bequeath all the balance and residue of my estate to my wife, Rosanna Burlingame, to have and to hold and enjoy for and during her natural life, with full pow-er to make such disposition thereof as may be necessary for her own comfort and support.
“Third: After the death of my wife then all my estate is hereby willed to Ann Kendrick to have and to hold during her natural life, but with no power to sell or dispose of any real estate.
“Fourth: After the death of the said Ann Kendrick or if she shall die before I die, then all the balance and residue of my estate I hereby will to my nieces, Florence Griffin and Birdie Huling.
‘ ‘ Fifth: I hereby name and appoint my wife ex*319ecutrix of this my will, and it is my desire that she be permitted to qualify and administer on my estate without bond.”
Mrs. Burlingame qualified as executrix and administered upon the estate. If she made annual settlements they are not disclosed and we have no means of accurately getting at the details of-the course of administration. A final settlement, date not shown, was put in by defendants. It takes no account whatever of the appraised value of the personal property, but charges her with cash received, only $557.13, and takes a total credit for outlays of $1,359.33, the items apparently covering funeral expenses and state and county taxes for 1901, expenses of the last sickness, probate fees, a monument, $255, a few small debts due by Mr. Burlingame, and (singularly enough) some repairs made on real estate in 1902, subsequent to testator’s death, and the expense of keeping a horse during that same time. The result of this crude and unexplained method of book-keeping was to ostensibly bring the estate in debt to her in a balance of $802.20.
The record shows that she made no renunciation of the will and no election to take otherwise than un-. der it.
Two months after testator’s death, vis., on February 18, 1902, she wrote a series of significant letters to the remaindermen, her nieces, which are set forth in the principal opinion.
These letters were admitted over the objections of defendants.
"While this correspondence was in progress, or immediately thereafter, a proceeding was brought by Mrs. Burlingame in the circuit court of Jasper county by constructive services against Ann Kendrick, Birdie Huling and Florence Griffin, the object of which was to sell all testator’s real estate except the opera house and the lots in controversy, on the theory that such sale was necessary to realize funds for her comfort *320and support. We take it the purpose of this proceeding was to judicially determine that the will granted full power of disposition on a contingency, to-wit, that it should he necessary for the widow’s comfort and support, and (what is more to the point) that such contingency had happened. There was testimony that purchasers were shy of assuming the risk of being able to prove, if challenged latex, that the contingency had arisen and they asked a judicial determination of the fact for their own protection. That proceeding ripened into a decree in July, 1902, and, under it, in that month and in October and November of the same year, the widow sold three several tracts to E. S. Williams et al. fox an express consideration in one deed of $2,800, in another of $270, and in another of $200—the deeds by apt narration referring to the power in the will and to the decree construing that power and adjudging the sale necessary for the comfort and support of the widow. While the first deed expressed a consideration of $2,800, it seems the net' amount realized by her under that particular sale was $2,232.50. The record is dark in respect to the cause of this difference. It seems, too, that instead of getting $200 under the last conveyance to Williams et al. she got a vehicle valued at $125. The total sales to Williams et al. aggregated, net, $2,718.50. In addition, in September, 1903, under the same decree, she sold the last remaining tract affected by it to Nelson and Cora Damon for $500, making a total of land sales of $3,218.50 net; or if the express consideration in the deeds be taken, of $3,770.
Going back a little to January, 1903, on the 15th day of that month, about six months after she got her court decree for the sale of the real estate and about two months after she made her last sale to Williams et al., and eight months before she made her last sale under the decree to the Damons, she secretly made a deed to her sister, the defendant Ellen, conveying real *321estate not affected by the decree, to-wit, the lots in controversy. She died September 13th,'1904, and this deed was recorded two weeks after her death and is set forth in the principal opinion. . .
The foregoing conveyance is the one plaintiffs seek to get rid of and defendants seek to sustain. As to the value of the lots conveyed by it, we think that, averaging the evidence of those best qualified to. speak, $7,000 would be a just figure. The lots seem well located, having a one-hundred foot front on Main street and run two hundred feet to Lyon. As said,there were two dwelling houses on the property, one fronting on Main and the other on Lyon. They had a rental value of from $50 to, say, $60 per month; Defendant showed that the insurance carried on these houses was $2,800. One of their witnesses, a real estate man, put the ground value at $3,500. Assuming the houses were not over-insured but carried insurance at full value (which latter assumption is very favorable to defendants) we would have a total value by him of $6,300. Another, a hardware man, a close-by neighbor but not qualifying as an expert, put the value at $4,000. Another, a real estate man, put it at $3,500. The defendant Thomas put it at “not over $5,000.” Another, not qualifying as an expert, put it at “$5,000 or $6,000.” On the other hand, one of plaintiffs’ experts put its value at from $8,000 to $9,000; another at $8,000, and another at the same. So that $7,000 could not be much out of the way. Prom the foregoing figures it appears that between December, 1901, when her husband died, and September, 1904 (two years and nine months), when she died, she sold, ostensibly for her support and comfort, real estate of the value of over $10,000. To this must be added the personal estate entirely absorbed and the rental income of the opera-house and one dwelling, such income amounting, as said, to over $100 per month. She had *322during that time the nse of another dwelling house, as pointed out, paid her husband’s few current debts, the expenses of his last sickness and funeral, and erected a monument to his memory.
Other record facts leading up to this astonishing-result are these: As hereinbefore stated, failing to get an out-and-out conveyance of practically one-half of the estate from the devisees and remaindermen under her husband’s will, including the lots in controversy, in July of 1902, she took her decree empowering her to dispose of four parcels of land for her comfort and support, omitting from that decree the lots in controversy and the opera house property., But that she planned to appropriate also the lots in controversy absolutely is shown by the conveyance she asked the remaindermen to make shortly after her husband’s death. The purpose she continued to entertain as to these lots is shown by her statement to defendants’ witness, Miss Eicholz, to the effect that she wanted her sister Ellen “to have it if she would come and take care of her. She thought she ought to have it.” Up to July, 1902, Mrs. Burlingame resided at Carthage in her home with one servant, Miss Eicholz. At that time the burden of taking care of her, unaided, had become too great for the latter. Her health gave way under it and she took Mrs. Burlingame to defendants’ home in Vernon county. Miss Eicholz testified that with another’s help she could have taken care of her mistress. The record is silent as to any attempt to get such assistance. Mrs. Burlingame remained with defendants in Vernon county until September, 1902.
Over the objection of plaintiffs that, under the statute, defendants were incompetent to testify as to the contract made and transactions between them and Mrs. Burlingame, finally consummated in the deed, and exception saved, they were allowed to testify that a contract was made as alleged in their answer and cross-bill, further to testify as to the con*323dition of Mrs. Burlingame, as to the character and extent of their services, and to the mailing and delivery of the deed in controversy and their fnll pér-formance of the contract. Their testimony does not show that part of the contract was that they should either sacrifice or sell their home in Vernon connty, bnt does tend to show that they did sell their small frnit farm there which was well fitted np as a home, at something of a sacrifice. ' When this sale was made is dark and whether it was before or after they moved to Carthage we do not know. There is no testimony that it was necessary to sell their home, as we see it, or to show it conld not have been rented. In September, 1902, they came to Carthage with Mrs. Bur-lingame and took np their residence with her in one of the dwelling houses on the lots in suit and thereafter lived with her as one family with all that implies. From that time until the deed was made in January, according to their testimony, there was some preliminary arrangement as to household expenses, to the general effect that Mrs. Burlingame furnished the house room and $30 per month towards groceries. She also furnished the coal for the entire winter of 1902-3. After the deed was made, according to their testimony, this allowance for groceries ceased and from that time on they bore the household expenses. We think the testimony fairly shows that while it was not necessary for two people to be constantly in attendance on Mrs. Burlingame, yet it does show that her weight and infirmities were such that on occasions, not infrequent, two people were necessary as attendant nurses, and that defendants were most faithful in such attendance. She had no physician, apparently, and no outlays on that score. It seems that her physical condition became worse toward the end of her life and that, at times, she was irritable and trying. The little business she had seems to have been in receiving rents, so far as disclosed it was done by *324herself. While she was a very helpless woman there is no evidence that she conld not transact snch business, with those who came to see her, with good sense. While.defendants as nurses had complete and sole charge of her and were constantly ministering to her, and she, under the arrangement made, was entirely dependent on them for care, it is not shown that they transacted any business for her beyond paying her taxes and bills, fetching and carrying in running errands at her instance. Indeed, she had no other business except legal business and that was in the hands of competent counsel, now representing defendants. About the time she secretly made the deed to her sister, she also made her will making the defendant, Ellen, sole legatee. At her death she had cash on hand, $500; and the appraisement of her estate showed a total valuation of personal property, $931.50 — all passing into Ellen’s hands. There is evidence that- in the summer of 1902, while yet in Vernon county, an attempt was made by Ellen and Mrs. Burlingame to get Miss Eicholz to take the latter back to Carthage and take care of her and that she refused to go because the labor was too severe. Outside of that attempt the record is barren of any evidence tending to show that defendants or anyone else at any time made any attempt or took any thought to employ any other nurses or make any other arrangements than the one made..
It seems the deed to Ellen was delivered at once. It seems, too, that after that deed was delivered Mrs. Burlingame paid all the after taxes on the lots conveyed to Ellen and that an ambitious plan of improving that property was at once put on foot and carried on up to the time of her death. All this, evidently with the consent and connivance of defendants. It is not necessary to go into details showing that after said conveyance, carpets, curtains, sewer connections, special taxes, screens, painting, carpenter work, building material, sodding, etc., all intended to improve the p-rem-*325ises claimed by defendants and devoted to that end, were paid for out of the income of the estate or the amount realized by the sales of other real estate with defendants’ acquiescence. On one of the houses on the lots conveyed to defendants, subsequently Eose put permanent betterments to the amount of over $1,100 for their convenience and gain.
After Eose’s death defendants built a third house on the lots, they say at an outlay of $2,700: There is no testimony that plaintiffs had any knowledge of the building of this third house before or at the time it was done and it is not contended that any estoppel on that score, as pleaded in defendants’ cross-bill, was made out. Defendants had knowledge of the terms of the will, their deed is the product of legal advice, and the record abounds in both direct and inferential proof that they knew where Mrs. Burlingame’s money came from and what she was doing with it.
Florence Griffin, one of the remaindermen, died prior to this suit leaving a son, Wallace, a child of seven years, her only heir, who through his guardian joins with Birdie Huling, the other remainderman, as coplaintiff.
In this court it is contended:
(1) That the deed from Eose to Ellen was a proper execution of the power donated by the will and that the contingency contemplated by the second item happened, i. e., that Eose’s conveyance was “necessary for her own comfort and support.”
(2) It is argued, further, that if the deed be ineffective then defendants are entitled to have charged, as a lien against the property conveyed to them, the value of their services and expenses in the support and care of Eose and to this end an account should be taken and decreed. Further, that they are entitled to have charged against the premises the value of the dwelling house built by them since Eose’s death.
*326(3) It is further argued that Rose could have'renounced under the will and taken one-half of the estate absolutely by election, ergo, the remaindermen are not injured.
(4) That the letters from Rose to her nieces were incompetent testimony.
Contra, appellants argue:
(1) That the letters were competent.
(2) That the chancellor erred in admitting the testimony of Ellen and Thomas to establish the contract between Rose on one side and them on the other, to show the performance, to show the delivery of the deed, and sustain it.
(3) That under the will the widow had no power to convey anything but her life estate; that if she had power to convey a fee simple title it arose only upon the happening of the contingency that such conveyance was necessary for her comfort and support; that defendants are charged with notice of the limitations on the widow’s power in the will; that the court (not the widow) must determine whether the contingency happened; that, on the whole record, the scheme outlined by the contract and conduct of the widow and the defendants shows a well-planned effort, finally consummated by the deed and the will of Rose, to divert' one-half of the estate from the remaindermen and devisees regardless of the intentions of their testator.
On this record can the decree stand? In my opinion it ought not, because:
I. Before determining main propositions on the merits, we will consider a preliminary question, viz.: Were Thomas and Ellen Nicholas competent witnesses to prove the verbal contract with the deceased widow and life tenant, made in the summer of 1902, and the performance of that contract from September of that year to January, 1903, when it was consummated by her deed to Ellen and evidenced by the deed itself? And *327were they competent to prove the delivery of that deed and to establish the value and extent of their services under the contract and their full performance of it till her death in order to sustain the deed?
Both sides rely on section 4652, Revised Statutes 1899, relating to witnesses. After abrogating the common law rule that interest in the event of the suit disqualified a witness, it, in a proviso, makes disqualifications of its own—one of them being: “That in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, . . . the other party to such contract or cause of action should not be admitted to testify,” etc. Doubtless no section of onr statutes has been oftener here for construction. The obvious difficulty in its exposition has caused doubt and perplexity, springing from its general language and broad thought, in applying it to the varying phases of litigated cases; and its judicial history shows that its interpretation has not always been steady and certain. To illustrate: Interspersed through a line of cases cited by appellants’ counsel to sustain their contention, we find Ring v. Jamison, 66 Mo. 424—that case was overruled in Wade v. Hardy, 75 Mo. l. c. 401; and Wood v. Matthews, 73 Mo. 477—that case was overruled by the Wade case, supra; and Bradley v. West, 68 Mo. 73—that case was overruled by Chapman v. Dougherty, 87 Mo. l. c. 626; and, finally, Curd v. Brown, 148 Mo. 95— that case was overruled in Weiermueller v. Scullin, 203 Mo. 1. c. 474. With this array of overruled eases, inadvertently cited, it is fortunate for appellants that the point made by them rests not upon the doctrine of cases thus exploded, but finds countenance in others of unimpaired authority, as we shall see later.
In the exposition of no section of the statute is there more call for use of the just rule of interpretation that the spirit of the statute as well as its letter must be carefully looked to. [Wade v. Hardy, 75 Mo. *328l. c. 400 et seq.; Orr v. Rode, 101 Mo. l. c. 398 et seq.; Chapman v. Dougherty, supra; Meier v. Thieman, 90 Mo. 433; Weiermueller v. Scullin, supra.]
Keeping that rule in mind, we have held the reason of the exception is well stated by Dr. Wharton to he, “That when there is no mutuality there should not be admissibility; i. e., when the lips of one party to a contract are closed by death, then the other party should not be heard as a witness.” [Chapman v. Dougherty, supra, l. c. 621.] We take it the key-note to the right doctrine, the touchstone of correct interpretation in respect to the statute in hand, is: First, equality; second, as in the Statute of Frauds and Perjuries, to shut the door on false swearing.
To determine whether the facts of a given case bring it within the reason of the exception, where the case is close, calls for nice discrimination. The language of the statute being, “That in actions where one of the original parties to the contract or cause of action in issue and on trial' is dead,” what is the contract or cause of action in issue and on trial in the case at bar and who are the original parties to that contract? It has been well held that the party disqualified need not be a party to the suit, but only one of the original parties to the contract which is the subject-matter of the suit. [Meier v. Thieman, supra,] It has been soundly ruled that in ejectment (where the cause of action in issue and on trial is, broadly, title to the premises in controversy) the “word, title, includes and signifies all the means and documents which evidence and establish the right of plaintiffs to recover in the action,” and that where one of the original parties to a deed relied on by plaintiffs as evidencing their title was dead, that as to such deed (it being necessarily in issue) the living party could not testify to deny its validity—for instance, that it had not been delivered, Chapman v. Dougherty, supra; nor testify to establish a contract which, if es*329tablished, would defeat ejectment, Hughes v. Israel, 73 Mo. 538; nor testify to establish the contents of a lost deed in ejectment, Messimer v. McCray, 113 Mo. 382. Assuming it good doctrine as so ruled then it follows that no more is the living party a competent witness to sustain the validity of the deed when that step, as here, is a necessary one.
Observe, in the case at bar not only was defendants’ deed challenged by the petition and not only did defendants not rest on a general denial but they took the bits in their teeth by way of initiative. By cross-bill they set up that very deed and the contract for support and comfort. They rely on the deed and contract, and on the performance of the contract as a sufficient consideration to support the deed, as a basis fo,r affirmative equitable relief. Plaintiffs joined issue on that cross-bill, and the chancellor gave defendants that affirmative relief.
On the foregoing record, we observe: In Stanton v. Ryan, 41 Mo. 510, surviving partners sued. Defendant set up a special contract with a deceased partner as a defense. Both defendant and the surviving partners were allowed to testify touching the cause of action of plaintiffs, but defendant was not allowed to testify as to the special contract made with the deceased partner which, if validated and enforced, would have defeated plaintiffs’ action. Error being assigned on the exclusion of that testimony, this court ruled: “The suit was not instituted on the contract, it was denied that the contract existed; the surviving plaintiff knew nothing about it; and to permit Ryan, by his own testimony, to come in and set up and prove its terms, when Stanton’s lips were sealed by death, and could not be there to contradict, qualify or explain his statements, is at war with justice, and certainly not authorized by law. ’ ’
Such reasoning precisely fits the facts of our case. As a suit under section 650, as in ejectment, is to try *330title, rules applicable to ejectment are applied. [Harrison Machine Works v. Bowers, 200 Mo. 1. c. 235 et seg.] If in ejectment a witness, an original party in a deed in the chain of title relied on, will not be heard to deny the validity of such deed whén the other party to it is dead, as held in the Chapman case, supra, neither can he he heard to sustain the validity of that deed, especially when its validity rests on the performance of a contract and the performance of it is sought to be proved by the living party. If that be the rule in ejectment, as we have seen it is, then, by like reasoning, arguing from similars to. similars, it must be the rule in suits under section 650 to try title. This is so because the mere form of the action, as pointed out in the Chapman case, is immaterial. Rules of evidence ought not to change because the action changes and takes one or another form. So much is self-evident, since neither the reason underlying the statute nor the letter of it connects itself in any way with the form of the action, but deals primarily and only with the admissibility of the evidence and the competency of the witness in all cases. Keeping so much in mind, let us illustrate: If Rose Burlingame had died without making the deed in question, but if she had contracted with defendants to make a deed in consideration of the performance of a contract to support, comfort and nurse her during her life and if defendants had sued for the performance of that contract and sought to vest the title out of the devisees under W. L. Burlingame’s will and into them on the theory that Rose Burlingame was the donee of a power under the will to subject the absolute title of the lots in controversy to that contract and to such conveyance, would Thomas and Ellen Nicholas have been competent witnesses to prove the contract and the performance of it? We think not, for it has been well and steadily ruled that in specific performance where one of the parties to the contract is dead the other is- not a competent witness to testify to the con*331tract, Teats v. Flanders, 118 Mo. 660; nor its performance, Sitton v. Shipp, 65 Mo. 297; nor is the living party a competent witness to reform a contract in equity by supplying a term omitted “by mistake, accident and oversight,” Smith v. Smith, 201 Mo. 533.
To sustain the lower court in admitting the evidence of Thomas and Ellen Nicholas to prove the original verbal contract, the sacrifice of their fruit farm, the execution of the deed and the full performance of the verbal contract, as well as the contract evidenced by the deed itself,- reliance is put on Stam v. Smith, 183 Mo. 464. That was a creditor’s bill to set aside an alleged fraudulent deed. The debtor died and the grantees in his deed were permitted to testify to sustain the consideration of the deed and disprove the fraud. On the theory that there was no controversy between the grantor (the debtor) or his heirs or administrators, on one side, and the grantees, on the. other, over the consideration, and on the theory that the deed was not and could not be challenged by the grantor or his heirs, that the execution of the deed was admitted and that plaintiffs were asserting no rights under or by virtue of it, and that the controversy was between living parties, the competency of grantees to testify was ruled in so far as they testified to sustain their theory that there was no fraud. The Stam case ruled on the doctrine of some of the following Vermont cases, viz.: Bank v. Scofield, 39 Vt. 590; Cole v. Shurtleff, 41 Vt. 311; Morse v. Low, 44 Vt. 561; Downs v. Belden, 46 Vt. 674; Banister v. Ovitt, 64 Vt. 580. A study of them leads me to the conclusion that they do not sustain Stam v. Smith, and are no authority whatever for the position taken by respondents’ counsel in this case. Therefore, since no case goes beyond the reason of it, we hold Stam v. Smith ought not to be followed, because :
The leading Vermont case is Bank v. Scofield. In sustaining the competency of certain witnesses, living *332parties tq a contract, it was ruled that it was not the contract in issue and on trial. To that end it was said: “It is not the contract declared upon; it is not the cause of action which the party is seeking to enforce by this suit; the plaintiff claims nothing under it. The defendant does not set it up as a substantive ground of claim by way of offset, or otherwise; neither does he set it up as a defense to the plaintiff’s right to recover, even; it is not in issue upon the record; it is not a contract between the same parties; and no judgment that can be rendered in this case will conclude the rights of either party under that contract.” Plainly the issues in Bank v. Scofield have no similarity to those in this case, ergo, the law applicable to such state of facts ought not to be applied here.
In Cole v. Shurtleff, supra, it was ruled that the contract over which the question of admissibility was raised was merely incidental and collateral to the contract at issue and on trial and that the living party was competent. It was ruled that the estate of the decedent was in no way affected by the litigation and could suffer no harm, the court saying that, “As the promise relied upon by defendant, was made as between these parties to the action, and neither being dead, the disqualification contemplated by the statute, does not apply.” It seems, therefore, that the Cole case is not in point.
In Morse v. Low, supra, it was said: " The contract to which Mrs. Low testified was not the one in issue and on trial, but another contract or transaction between herself and the testator, which comes into .the case collaterally, and as a fact bearing collaterally upon the contract or cause of action in issue and on trial, has the effect to establish that the contract in issue and on trial, and which the estate of the testator is attempting to enforce, never existed. She does not come within the disqualification of the statute. This is the con*333struction which the court has repeatedly placed upon this statute.”
Downs v. Belden, supra, was ruled on the strength of the Scofield, the Low and the Morse cases, and on similar facts. In that case the admitted testimony related solely to a collateral contract and not to the contract at issue and on trial. Banister v. Ovitt, supra, followed the Downs case.
We think we are well within the reasoning of the-Vermont cases in holding that their doctrine is not applicable to this record. Here the estate of W. L. Bur-lingame, as represented by the remaindermen and devi-sees under his will, is directly interested and vitally affected hv the contract and deed. The contract between the widow and the Nicholas people and the deed following it are directly in issue and on trial. The widow in making that contract and in executing that deed, as the donee of the power in the will, pro hac vice, acted for the estate of W. L. Burlingame and assumed to hind the devisees and remaindermen. The defendants must stand or fall on her right to make that contract and that deed. In what sense, then, is the contract or deed collateral to the issue on trial? She stood in the relation of a trustee of the estate for the benefit of the remaindermen subject to the provisions in the will for her own benefit and defendants contracted with her in that capacity. So that, she being dead, from no point of view are they competent witnesses on their transactions with her in making or performing the contract, or in sustaining that deed.
II. By the second clause of the will the widow was given the estate “to have and to hold and enjoy for and during her natural life, with full power to make such disposition thereof as may he necessary for her own comfort and support.” In the evolution of one phase of their argument plaintiffs’ counsel contend that the will limits the widow to a disposition of her life estate only. It is pointed out that the third clause *334relating to the second life-taker, Ann Kendrick, refers to “my estate,” and that this expression is nsed to designate Ms estate after the death of his wife. Further, that the expression “my estate” is nsed in the fourth clause of the will in respect to the remainder-men. The argument runs that these expressions indicate testator’s intention to he that the whole corpus of his estate would he left, after the life estate fell in, to go to the remaindermen. But counsel argue unsoundly, we think, in this behalf. Getting at the intention of the testator from the body of the will, we see that in the third clause he denies to Ann Kendrick, the second life tenant, “the power to sell or dispose of any real estate.” That means that he denied to her the power he has just given his widow. Did testator intend to deny to Ann Kendrick the power to dispose of her life estate? If the power given the widow refers merely to a life estate then the power denied to Ann Kendrick refers to the same character of estate and she could not dispose of her expectancy. Now the law favors alienability. A life tenant has the right to sell his life estate without express power to do so. Such estates being vendible at law, we think it follows that the power given the widow in this instance was not idle, as it would be if limited to a life estate by construction, hut cuts deeper. When testator gave his widow the power to make “such disposition thereof” as may be necessary for her own comfort and support, what did he mean? “Such disposition” of her life estate? No, he was not dealing with a life estate hut was adding something. He was dealing with the fee. This view is strengthened by a critical examination of the will and hv putting ourselves in the shoes of testator, getting into the family circle and looking at the situation, the needs of the widow, the extent of the estate and the whole environment from his standpoint. There is no tautology, no lifeless words o,r thought, no exuberance, obscurity, *335or looseness in language—to the contrary, it is a model of perspicuity and terseness, evidently the work of counsel learned in the law, simple, plain, direct, using words of pith and using them to the point. True, his denial to Kendrick of the right to sell “any real estate” was not necessary. Silence would have done, but denying it tends to accentuate the widow’s privilege and doubtless was put in to that end. Here is an old man and an old faithful and crippled wife, standing in loving relation with each other. He had a competence and saw the end of his days at hand. She had nothing. There were no children to provide for. He was under an abiding duty to provide for her well, and, responding to that duty, desired his property in the-first instance to be used for her comfort and support, when necessary. If the income and personal estate were sufficient in the unknown vicissitudes of the future, well enough; hut if not—what then? That contingency, well worth while considering, was in his mind and this will answers that question by adding to her life estate the power of making a disposition of the fee on its happening. The books are full of'cases where to a life estate is added a power of disposition of the fee. It is hornbook law that in interpreting a will the intent of the testator is the controlling thing. Those claiming under wills take subject to that intent, and the intent of this testator, we think, is as indicated. Therefore we agree with what is said by our Brother ValliaNt on that score.
III. The duty of courts being to enforce wills when their provisions are not repugnant, or in contravention of law, the pole star of will interpretation being the intent of the testator and that intent depending primarily on the language used, and the language in wills being rarely the same, it results that cases, however soundly decided, establish few rules of universal application. We shall omit excerpts from them. Each *336case must be decided on its own facts. In this case defendants assert that the contingency happened upon which the widow could dispose of the fee to the lots in controversy. Who, ultimately, under this will was to decide that fact? In some cases the intent of the testator, gathered from his language, puts the right of decision solely in the widow and she is given directly or by implication uncontrolled judgment and discretion. But the use of such language in this will is industriously avoided and testator left the power of disposition to hinge upon the existence of a fact, vis., the necessity for her own comfort and support, not that she might deem it so or want it so for by-ends. So, too, the comfort and support within the purview of the testator was her own and not that of another. The comfort and support mentioned did not mean fanciful conceits, whims or extravagances. The words import a reference to her needs and manner of living. Whether the contingency actually happened which would uphold the conveyance, became, therefore, a matter of judicial determination upon the evidence. That evidence has been set forth at such length as to prelude any necessity of repetition, and we announce our conclusion to be that the contingency did not happen, ergo, the deed cannot stand. The facts disclosed lead to the conclusion, first, that though testator had excluded Mrs. Bur-lingame’s relatives from the list of the objects of his bounty, yet the widow determined they should share practically equally with the devisees under the will, and (what is more to the point) effected that very purpose; second, there are unmistakable indications that defendants shared in that illegal purpose. They are charged with notice of the terms of the will. The intimate relations between defendants and Mrs. Burlin-game under the same roof and at the same fireside, under a common and confidential family arrangement, not only as blood kin but as her chosen, trusted and *337only attendants, when viewed in the light of results attained, must be held to show that they willingly participated in her improper hopes and desires and aided the consummation reached. They were bound to inquire as to her right to make the conveyance and are presumed to have inquired. They are charged with knowledge of all facts such inquiry would have disclosed if prosecuted with diligence. Among other things, inquiry would have shown them that it had been deemed necessary by Mrs. Burlingame, by her legal advisers and would-be purchasers, to have a judicial determination of the happening of the contingency in order to support other sales. They must be held to. know that such judicial determination was avoided in this instance and a secret deed was taken and kept off the record until her death. It is not going too far to say that an unfavorable conclusion arises on such fact, to-iuit, that, among them all, they were not willing to hazard an application to a court to sell the lots in controversy under the powers in the will but preferred to take chances, after the event, of being able to satisfy a court of justice, that the contingency arose, should the deed be questioned. Let us put a case: Suppose the assailed deed had been shown to the court when the ease brought was on trial, is it supposable that with that deed’s providing for her full comfort and support to the end of her days the court would have gone on and sequestrated other real estate as necessary to her comfort and support?
It is suggested to us that the widow had the right of election. That under such right she could have taken one-half the - estate absolutely. It is shrewdly argued that, since what was done amounted to that, the remaindermen are not injured. But the suggestion is specious and will not bear analysis. If she had renounced the will she would have lost her income for life from the other half of the estate. She would have *338gained the full right to have disposed of her half by deed or will, at her wish, but she would have lost the right to have disposed of the whole or any part of the other half for her comfort and support. Balancing the value of her election right against her rights under the will she took the will for it, therefore she and those who hold under her are bound by it and cannot piece out their rights by calling to their aid the abandoned right of election.
"We do not hold that under he.r husband’s will the widow was compelled to go into court for power to sell. That she went into court in one instance and stayed out in the other we think is of some significance. She had power to sell under the will. But her power was coupled with a limitation and must be based on the existence of a fact, to loit, that the sale was reasonably necessary for her comfort and support. We find the fact to the contrary.
Under the will she was trustee of an estate for the remaindermen as well as the donee of powers on her own behalf. In this dual capacity she and Ellen were bound to. act with good faith. This, in law, neither did, however tenderly the facts are viewed. That under such circumstances their deed was not operative to convey a fee simple estate is held by many cases found in briefs of learned counsel, but we need cite but one from our own court, Scheidt v. Crecelius, 94 Mo. 322, and one or two from Michigan, Morford v. Dieffenbacker, 54 Mich. 593; Gadd v. Stoner, 113 Mich. 689. Let us put another case: Suppose instead of one half she had appropriated all the real estate to defendants under the cloak of necessity, on the facts of this record would such deed also be good and valid?
Great reliance is put by counsel for defendants on Berg v. Moreau, 199 Mo. 416. But that case differs from this in vital particulars. There the contracting party was the owner of the real estate. He was not hampered by limitations on his right to contract. Not *339so here, where the contracting party was a life tenant and her right to pass the fee rests on powers in the will to he well executed, i. e., in good faith and under the limitations prescribed. It seems to me that the better doctrine is that a will couched in terms of the one at bar contemplates no sale of real estate until the personalty is exhausted and the income in rents proves insufficient, and then only to supply a deficiency—a state of facts absent from this record. There are cases giving countenance to this view — for example, Parks v. Missionary Society, 62 Vt. 19; Morford v. Dieffenbacker, supra; In Re Oertle, 34 Minn. 173.
1Y. It is argued by counsel for respondents that the letters from Rose Burlingame to her nieces in Michigan were not competent testimony under the issues raised by the pleadings. That contention received no consideration In Division for it was not deemed of substance. But as the majority opinion In Banc sustains that contention a word or two now is not amiss. Speaking generally, one of the appellants’ charges was that Rose Burlingame hatched or participated in hatching a wrongful scheme to divert ber husband’s estate from the remaindermen over to her own blood. Therefore the proof of that allegation was one step1 in appellants ’ case. To my mind it is quite difficult to critically read those letters without seeing they tend to prove that allegation. I am unable to take the view that their contents are mere feminine stings which, peradventure, irritate, tickle or amuse but do not hurt. They show she wanted half the estate placed at her absolute disposal while at the same time she preserved to herself the use of the other half. She thought the will was unjust to her in that particular. In the light of results obtained, it would be toying with the facts of this case, it seems to me, not to see that she thus early determined that such half should be diverted from the re-maindermen and go to her own blood and kin; Is it *340anything to the purpose to say that if the proof had stopped there, and if the Nicholas people had not participated in her design, appellants’ case would have failed! Appellants did not stop with the first step in the ease. They introduced testimony tending to implicate the Nicholas people in Mrs. Burlingame’s preconceived and wrongful design. We shall not repeat observations already made in that regard. Fraud may he established by tracing it from results hack to its inception, and there are facts in this record which make it vain for the Nicholas people (with the fruits of the fraud in hand) to contend that they did not participate and aid Mrs. Burlingame in such diversion and conversion. The letters were properly in evidence for what they were 'worth in an investigation of fraud, and in proving one vital element of it.
Y. Not unmindful of the doctrine that “a gentleman should not be improved out of his estate,” nor of the other rule that had faith may he so active and gross in cases of the character we are dealing with that the mala fides may present an insuperable obstacle to charging services or betterments against the estate, yet we think equity requires, to disentangle the complications of the present case, that a modified rule should be applied here, which We will set forth as directions that should be given to the lower court.
Having reached the conclusion that the decree is inequitable, sundry courses are open, e. g., we could enter a decree here, or reverse and remand with directions to enter a particular decree on the whole case, or reverse and remand with directions that certain questions are closed and others are open. We think the latter course should be taken because the record data for an accounting are unsatisfactory and the case was tried on the wrong theory in admitting the testimony of respondents. Their improper testimony is so inextricably woven into the warp and woof of the *341record that it would be impossible to dislodge it and state an account tbat will do equity.-
Accordingly, the judgment should be reversed and the cause remanded with the following directions: First, to set aside tbe conveyance from Rose Burlin-game to defendants. Second, to hear competent evidence on tbe reasonable value of defendants’ services and outlays fox the necessary comfort and support of the widow from tbe day in September, 1902, they began rendering such services, until the day of her death, excluding the sale of the fruit farm in Vernon county and an alleged sacrifice of that farm, and dealing with the comfort and support of the. widow in a humane but common sense way, excluding from it mere fanciful conceits and extravagances. Third. They should be allowed for an excess (if any) of expenses of her funeral and just debts of hers by them paid, over and above her own property passing to them or either of them by her will, also for taxes, general and special insurance, and any repairs made by them which were necessary to the preservation of the property conveyed by the deed. Fourth. On the other band, they should be charged with tbe reasonable value of the use of tbe house in which they lived with tbe widow during her life, and any rents they received prior to her death from tbe real estate. Since her death they should be charged to the date of the decree with the reasonable rental value of the property in dispute, including the reasonable rental value of any house on the premises occupied by them, or built by them. They should also be charged with any money or property passing into the hands of them or either of them and belonging to the estate of W. L. Burlingame, and this includes any of such property so received under the will of the widow. Fifth. The reasonable cost of the house put upon the lots by defendants should be ascertained and put to the credit of defendants, and if, on a balance struck on the whole matter, there be found anything due de*342fendants or either of them it should he charged as a lien against said lots. Sixth. In default of payment of such amount found due within six months of the date of the decree, the lots should he sold to satisfy the the amount of the lien. Seventh. Subject to such lien, the title (as against defendants) should he decreed into Birdie Huling and Wallace Merrill Griffin. Eighth. Costs to this date to be paid by defendants and those accruing hereafter to follow the final decree as may he equitable.
Woodson and Graves, JJ., concur in these views.