agreement with their parents invested them with the exclusive ownership in equity of the land upon death of the surviving parent. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 387-395; Dec. Dig. 121.] 4. SPECIFIC PERFORMANCE TO WILL LAND. been in the possession of said real estate except a small lot conveyed by him, up to the date of trial. None of the said lands were applied to the purpose of administration of decedent's estate which has long since 86-AGREEMENT closed. The answer admitted the relationship of Where plaintiffs' parents agreed that, if the parties, the death of the parents, and plaintiffs would turn over their earnings to them to aid in the acquisition of land, extinguishing the making of a will by the survivor as alliens thereon, etc., upon the parents' death the leged in the petition. It denied the making contributions so made should be returned to of the agreement sought to be enforced, and plaintiffs, or, if the property were disincumbered or sold, then the plaintiffs should be reimbursed among other defenses averred that the devise for their advances from the proceeds, the agree to Lena Schlenker by her father was in conment not investing plaintiffs with any exclusive sideration of her services and his agreement ownership in equity of the land, such contract therefor to give her the property. The anwould not support plaintiffs' suit for specific performance to secure conveyance of the land, swer stated that the plaintiffs, after its proafter their parents' death, from their sister, the bate, contested said will, which suit was finalsurviving parent's devisee. ly decided against them and by the prosecution of which they are now estopped to claim any title to said land. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 223, 224; Dec. Dig. 86.] 5. WILLS 82-RIGHT OF DISHERISON. A competent testator has the untrammeled right, in devising his estate, to make any discrimination he may see fit between his children, or to deny the force of moral obligations in favor of one over the other. [Ed. Note.-For other cases, see Wills, Cent. Dig. 203; Dec. Dig. 82.] Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge. Sult for specific performance by Gustave Beyer and others against Lena Schlenker and another. Judgment for defendants, and plaintiffs appeal. Affirmed. Walter H. Nohl and Montague Punch, both of St. Louis, for appellants. William Zachritz, of St. Louis, for respondents. BOND, J. This suit is by two half-brothers against the half-sister of one, who was also the whole sister of the other, and her husband, for specific enforcement of an oral agreement alleged to have been made by Emil F. W. Beyer and his wife, Henriette Beyer, to convey by will or otherwise at their death, to plaintiffs, the lands described in the petition in the proportion of about three-fourths to one and one-fourth to the other, in consideration of having received all the wages earned by the plaintiffs after their majority and up to the date of their respective marriages, the one at the age of 25, and the other at the age of 33 years. The contract was alleged to have been made in September or October, 1890. The mother of the plaintiffs died about 1899; their father, Emil F. W. Beyer, died about January 15, 1904. At the time of his death he was possessed of full title to the real estate in question and devised all of it, after some small legacies to the plaintiffs and a second sister (which legacies were not excepted to by the legatees), to his daughter, Lena Schlenker, née Lena Beyer. The husband of said devisee was named executrix (?) of the will, and he and his wife have "The plaintiffs in this case, having requested the court to make a finding of facts herein, the the facts to be as follows: court upon the hearing of the evidence finds "The court finds that the plaintiffs were the children of Emil F. W. Beyer, who died on or about January 15, 1904, leaving a last will and testament which is correctly set out in the petition; that plaintiffs thereafter contested the validity of said will by a suit filed in the circuit court of the city of St. Louis, but that said suit resulted in a final judgment sustaining the will. "The court finds that the said Emil F. W. Beyer held the title to the real estate described in the petition, and the court also finds that the plaintiffs while living with said Emil F. W. over to said Henriette Beyer, the greater part of Beyer, and his wife, Henriette Beyer turned their earnings, but the court does not find from the evidence that said Emil F. W. Beyer or said Henriette Beyer in September or October, 1890, or at any other time made a contract and agreement by which he or she undertook to transfer and convey, by will or otherwise, to plaintiffs, upon the death of the parent, the title to any part of the property mentioned in the petition. "The court being unable to find that there was such an agreement, must necessarily refuse to decree a specific performance." Judgment for defendant, from which plaintiffs appeal. [1, 2] I. The first error assigned is that the circuit court violated its statutory duty to make separately its findings of fact and conclusions of law governing the same. R. S. 1909, § 1972. This statute is clear and positive in terms and imposes an imperative duty on trial judges when the case is heard by them without the aid of a jury or when sitting in equity upon proper request by either party to state in writing "the conclusions of facts found separately from the con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes clusions of law." The fact of the failure to make these findings does not necessarily involve, in equitable actions, a reversal of the decree below, for in such suits the case is practically retried on appeal, and if all the evidence is preserved in the transcript the errors of the trial court are negligible; for the appellate court will determine the case according to the preponderance of the com- | petent evidence and by the application of correct equitable principles. Miller v. McCaleb, 208 Mo. loc. cit. 574, 106 S. W. 655; Shaffer v. Detie, 191 Mo. loc. cit. 387, 90 S. W. 131. In the case at bar the trial court did find, by necessary implication from his language quoted above, that the contract alleged in the petition was not entered into with the plaintiffs, by their parents or either of them. When this verdict was reached in the mind of the court nothing was left upon which a decree for plaintiffs could rest. For if there was no contract there was nothing for which a decree for specific performance of a contract could be rendered, hence any further statements by the court of its legal conclusions as to the law governing specific performance of oral agreements would have been supererogatory or mere recitals of abstract rules of law without any basis of facts calling for their application. [3] That our conclusion on this point is unavoidable also appears by the patent fact that the first question which we are called on to review in the present record is: Did the evidence show a contract between plaintiffs and their parents of such a sort that equity will enforce it? For if it should be that the contract according to its terms and the circumstances under which it was entered into was not the subject of specific performance, then it will be useless to compare and weigh the testimony of the witnesses tending to prove or disprove the making of the contract. To sustain the allegations of their petition as to the formation of the agreement sought to be enforced, the plaintiffs adduced the testimony of Margaretha Schweiger, the sister of the plaintiffs by a former husband of their mother. This witness testified that she heard several conversations on the subject, the first in 1890. "Q. Tell the court just what the conversation was between your parents and the plaintiffs Gustav and Ernst Beyer? A. My mother said they should give all their money up and when they died, they would will it or make it by deed to them back. "The Court: What did anybody say? A. Just said they would pay that money if they would do that. "Mr. Punch: Q. What was said? A. That they will it to the boys or give them a deed. Q. What property were they talking about? A. The Arkansas avenue property, 310 feet by 125 feet deep. Q. The property they lived on? A. That my parents lived on; yes. Q. Go on and tell just what was said? A. Well, they said they wanted to buy the property, in October, they wanted to buy it, they said if they wanted to give their money up, they would will it to them or give it to them by deed. Q. To whom? A. To brothers Gustav and Ernst. ty? A. What I said, that my brothers should give it up their money and they will it back or give it by deed. Q. Anything said about the property? A. That they wanted to buy it? Q. Anything said about what the boys should put in? A. What they earned they would put in and mother and father should buy them the clothes and they bought and they bought them for them before already. "Mr. Punch: Q. At that time was this mentioned about the parents buying clothes? A. Yes; mother said she has got $500 to get todid your father say at the time of this conversagether and make the first payment. Q. What tion? A. My father said that they can't take it along, and what you paid in you will get it back. Q. Who said that? A. My father while they was altogether. Q. Who did he say it to when he said you pay it in, you will get it back? A. To the boys, Gustav and Ernst. Q. Was A. Nothing else except anything further said? they would give it back to the boys the way they paid it in." "The Court: What was said about the proper She further testified that the plaintiffs earned from $14 to $15 per week, and were each charged $4 a week for their board, and out of the surplus their mother purchased them their necessary clothes and wearing Ernst until he was 25 years of age (1897) apparel; that such payments were made by when he married, and on the part of Gustav until he was 33 years of age (1898) when he married; that after their respective marriages each of the plaintiffs left the abode of their parents; that the mother died in 1899, and the father January 15, 1904. On crossexamination this witness testified, to wit: "Q. Now, do you claim that your brothers and yourself were very fond of your parents? A. Indeed, until the last minute they lived. I never spoke in a disparaging manner about my father. brothers and I brought the suit to contest the After my father's death in 1904, my will of my father. That suit was in the courts in 1904 until last year. At that time we, and mother had made such a contract. At the Gustav and Ernst and I, claimed that my father trial of the will contest I did not testify to any such contract, we weren't asked such a thing. I testified for the plaintiffs in those cases." By the will of their father plaintiff Ernst was bequeathed $5, plaintiff Gustave $100, and the above witness $150. Upon the declination of these legacies the executor paid them as escheats to the state. As to the alleged agreement, Martha Merch testified for plaintiffs, to wit: "A. I was there when the boys came home. Several times they come home and laid their money down in the envelope. I says to the old lady, 'You have got some mighty nice sons, do they give up all their pay? She says, 'Why shouldn't they? I buy their clothes, give them car fare; some day when me and the old man die we can't take it along; they will get every cent of it back,' is what she told me, not only one time, but she told me several times. No one was present when that was said to me, just me and the old lady." Alfonse Schlesinger testified for appellants, to wit: "It is no more than right, they are our boys in the first place, besides, if anything happens to us, why they shall get it all back in proportion, either by will or by deed of trust; what they are doing they are doing for themselves. | their parents invested them with the exclu'I am in the notion of selling the property and sive ownership in equity of the land in suit giving the boys their share.' I didn't see him again until about six weeks before he died, and upon the death of their surviving parent. remarked to me he had asthma; he wasn't feel- In other words they did not so construe ing well; he seemed depressed; he said he their oral agreement nor did they act upon wasn't getting treated right at home by his any such understanding. daughter, Mrs. Schlenker; but he says, 'I would like to see that my boys get what is coming to them, if something should happen to me," he said, 'My boys, Ernst and Gus, they should get what is coming to them, if something should happen to me." The substance of the testimony of the other witnesses for the plaintiff on this point was that the parents stated they would give the boys that money back in the same proportion they paid it to them to buy the land. Taking the foregoing testimony as a whole and after a thorough consideration in detail of all of its parts, we are unable to reach any other conclusion than that the earnings of the plaintiffs were given to their mother, a return of what money they have given who applied the residue after deducting board and clothes to release the liens thereon, help in the purchase of said property, and that the parents intended such contributions so made to them should be returned at their death to the plaintiff, or in the event the property was disincumbered and sold, then so much of its proceeds as would satisfy the claims of plaintiffs would be paid over to them. This purpose was repeated in many forms, but to the same substantial effect by the various witnesses who testified for plaintiffs, and is the full and fair meaning of all the evidence relating to the alleged agreement. After the death of his wife the father, who survived more than five years, stated he was thinking of selling the property for the very purpose of returning to the boys what they had given to aid in its purchase and the removal of its incumbrances, but there is no evidence that either of the parents thought or understood that they had agreed to make any other gift or devise to the plaintiffs except for reimbursement. No money was received by either parent after the marriages of the plaintiffs. For the whole period of the lives of the parents thereafter, the plaintiffs neither contributed anything to their use and benefit, nor took any steps whatever to assert against them any claim for what they had given prior to their marriage, nor to render it certain nor adjust or secure it. Neither after the death of the last parent did the plaintiffs bring this action for the conveyance of the title of the land, but contented themselves with the suit to contest the will which, in the event of its success, would have resulted in a devolution of the title as upon intestacy and according to the statutes of descent. This voluntary relinquishment by the plaintiffs of any claim to the absolute ownership in the lands in question by the institution of the will contest strongly corroborates our conclusion on the foregoing testimony that plaintiffs did not understand that their oral agreement with The view we have taken of that agreement is clearly in harmony with that taken by the plaintiffs until after the failure of their will contest, and is supported by the analysis of the language used by the witnesses who testified on the subject. All of the testimony relating to the agreement is vague and indefinite and unspecific in referring to its terms. The witnesses are shown to have had intelligence and business experience; yet inspection of what they attribute to the mother and father reveals mere generalities of expression indicative of a recognition of the rights of the plaintiffs to from their wages to help in the purchase of the land and freeing it from the mortgage, but no distinct or specific method for so doing. It is impossible from the language of the parties to the agreement, as quoted by the witnesses, to deduce a clear and distinct. statement of a contract certain in its terms and meaning and mutually obligatory, the effect of which was to vest the equitable title to the land in question exclusively in these two sons at the death of their parents. In referring to the obligation thus created the parents agreed according to Margaretha Schlesinger "to will or make it by deed to them back" referring to "all their money." In fact these witnesses made the last quoted terms, "all their money," the subject of the predicate in the first sentence of her testimony, and she never went beyond that statement. Indeed she repeats in subsequent lines the same thought. It is clear therefore that there is nothing in her testimony, the sole effect of which was that the money contributed by the plaintiff should be paid back, which involved a clear and specific agreement on the part of the plaintiff to convey the entire title to specific lands. Another witness in speaking on the same subject said it was the intention of the parents to do that by deed of trust. [4] Our conclusion is that the contract, as the proof adduced by plaintiffs tends to show, was not such an agreement nor supported by that degree of testimony which would entitle plaintiffs to come into a court of equity and have a conveyance of the land in question. Merrill v. Thompson, 252 Mo. loc. cit. 730, 161 S. W. 674. Since the evidence in this case does not meet the requirements prescribed by law for the redress sought, we would not be justified in disturbing the judgment of the learned trial court. [5] II. It may be conceded that the will of the surviving parent in this case ignored the rights of the plaintiffs arising from the money contributed to their parents after their majority and prior to their marriage. But a competent willmaker under the law has the untrammeled right in devising his estate, to make any discrimination he may see fit between his children, or to deny the force of moral obligations in favor of one over the other. The legal validity of the will of the father was finally upheld. We have no more power in this case to make another contract with reference to the conveyance of the lands, than the one which the evidence shows was entered into by the parties, than the court had in the will case to make another will than the one actually probated. Unless the defendant, to whom the entire estate was given, barring a few legacies, shall, from a sense of justice, remedy the inequality of the residuary devise to her, then appellants must bear the consequences of the obliquity of moral vision of the testator and their own incaution in failing to make a contract which would have secured them indemnity against loss of money paid their parents. Such an act of restitution on the part of the defendant would lose none of its fine qualities in being prompted solely by her own sisterly sense of right, and not enforced by law which deals only with legal rights and duties, and turns over all other obligations to the forum of conscience. The result is the judgment is affirmed. All concur. should not in the aggregate exceed $3,000,000. Section 5 authorizes the board to contract for the construction of the entire building, while sections 6, 7, 8, and 9 relate to the appointment of a secretary, the appointment of a superintendent of construction, and decisions by the board, and the manner in which accounts shall be audited and paid. Section 10 declares that, if the act submitted to the voters shall be ratified and the bonds authorized are issued and sold, then the proceeds are appropriated to the 11 declares that the act shall take effect after construction of the state capitol, while section ratification of the act of March 16, 1911. Held, that as the act creating the commissioners made no provision for their purchase of furniof office should cease upon completion of the ture, but specifically provided that their term building, the state capitol commission has no authority to purchase furniture for the building, and such authority cannot be read into the statute on the ground of convenience. [Ed. Note.-For other cases, see States, Cent. Dig. § 69; Dec. Dig. 67.] In Banc. Original application by E. W. sion Board, for writ of mandamus against Stephens and others, State Capitol CommisJohn P. Gordon, State Auditor. Writ de nied. A. T. Dumm, of Jefferson City, for relators. John T. Barker, Atty. Gen., Thomas J. Higgs, Asst. Atty. Gen., and Lewis Hord Cook, of Jefferson City, for respondent. BLAIR, J. This is a proceeding by mandamus, instituted by the members of the "State Capitol Commission Board" for the audit an account for office furniture for the purpose of compelling the State Auditor to new capitol and issue his warrant for $32.50 in payment thereof. This is the only pur STEPHENS et al., Capitol Commission Board, v. GORDON, State Auditor. (No. 19302.) (Supreme Court of Missouri. Dec. 8, 1915.) STATES 67-STATE CAPITOL COMMISSION-chase of the kind, so far as the petition AUTHORITY OF. Act March 16, 1911 (Laws 1911, p. 416), providing for the issuance of bonds to the amount of $3,500,000 for the erection of a new state capitol, declared that $300,000, or so much as might be necessary, shall be applied to the furnishing and other equipment of the capitol, and $200,000 to the purchase of land, adjacent to the present state capitol premises. The act provided that it should go into effect upon and after its ratification by the voters at an election held for that purpose. Act March 24, 1911 (Laws 1911, p. 108), which was entitled as an act providing for the building of a new state capitol and for acquiring other premises than those owned, and making provision and also appropriations out of the state treasury for carrying out the purposes and provisions of the act of the General Assembly entitled "An act authorizing and directing the contracting of the liability of the state of Missouri by the issuance of state bonds not exceeding $3,500,000," which was approved March 16, 1911, provides, in section 1, that for the purpose of building a new state capitol there is created a board of commissioners styled the "State Capitol Commission Board," who shall hold their offices until completion of the building or unless sooner removed. Sections 2 and 3 prohibit the commissioners from being interested in any contracts, and provide for condemnation of premises adjacent to the old capitol grounds, while section 4 provides for the selection of a plan for the state capitol; the plan to be obtained by a competitive architectural contest. The section further declared that no plan shall be adopted unless accompanied by accurate specifications, nor until it should be ascertained that the cost shows. Respondent entered his appearance, waived the issuance of the alternative writ, and demurred, generally, to the petition therefor. judgment. Relators thereupon moved for Under the issues made, the sole question presented is whether the State Capitol Commission Board is empowered to purchase the furniture for the new capitol. The title of the act is as follows: "An act providing for building a new state capitol at the present seat of government of the state of Missouri and for acquiring other premises than those now owned by the state, for additional state capitol premises and making provision, and also appropriations out of the state treasury, for carrying out the purposes and provisions of this act, and also of an act of the General Assembly of this state entitled, 'An act authorizing and directing the contracting of the liability of the state of Missouri by the issuance of its state bonds in a sum, not to exceed three and one-half million dollars, and for the sale of said bonds, to provide means for the building, furnishing and other equipment of a new state capitol at the present seat of government of the state, and for the purchase of additional state capitol premises, and also providing for the payment of said bonds and interest accruing thereon." Approved March 16, 1911. Laws 1911, p. 108. Section 1 of the act first provides: "That for the purpose of building a new state capitol at the present seat of government of this For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes state, there is hereby created a board of commissioners to be styled the 'State Capitol Commission Board.'" The section then proceeds to fix the number and qualifications of the members of the board and provide the manner of their election, and continues, "Said commissioners * shall hold their offices until the completion of said building, unless sooner removed for cause," provides for bonds to be given by the members, for the filling of vacancies, for the general manner of conducting the business of the board, for its offices and times of meeting and for the compensation of members, and concludes, "The term of the members of the board shall end with the construction of the building proper." Section 2 provides that: tion; shall have, above the basement, a first floor for state office departments, also a second floor for legislative chambers and offices, and a third floor for offices and committee rooms; shall have a roof of either tiling, slate, sheet metal or other suitable material, and shall be provided with proper heating, lighting and ventilation ed sanitary arrangements and equipment." facilities and with the most modern and approv The section then authorizes the board to confer with persons "conversant with the order to procure information upon which to subject" and to visit other state capitols in base its selection of a plan. adopting a plan, to enter into "a contract or Section 5 authorizes the board, after contracts in writing for the construction of said capitol pursuant thereto." It authorizes the board to "contract for the construc "It shall be unlawful for any member of the tion of the entire building by a contractor, board to be connected directly or indirectly in individual or corporate, who may undertake any manner with any contract or part thereof the whole work" or to make separate confor the building of said state capitol or for any tracts for different classes of work, if the work or employment connected therewith or for board deems it advisable to divide the work the purchase or furnishing of any material or supplies therefor, or to accept any benefit there- into classes. It requires all contracts for from, or the promise of any such benefit" in any the construction of said building or for desmanner, and then fixes drastic penalties for the ignated classes of the work thereof to be let violation of that provision and forbids the employment of any person as superintendent "of to the lowest and best bidder, and provides the construction of said building who is or shall become connected directly or indirectly with any contract for the building of said capitol or for the furnishing of any of the material or labor therefor." In this section is set out the oath to be taken by members of the board, as follows: "I ..... do solemnly swear that I am not now and shall not, directly or indirectly, become interested or concerned in any manner with any contractor or contractors, person or persons, company or corporation for the construction of the state capitol or any part or portion thereof or in the proceeds or profits arising out of the same or in any work or labor done thereon or material furnished in the construction of said building, and that I shall faithfully and impartially, according to law, perform all my duties as a member of the State Capitol Commission Board." the manner of letting bids, and requires that "all contracts for the construction of said building or classes of work thereof or for material and labor shall be in writing" and signed in a prescribed manner. It then proceeds: "No contract or contracts shall be made or entered into by the board incurring in the aggregate an expense greater than three millions of dollars and the interest received by the state on the proceeds of the sale of bonds hereinafter referred to for the construction of said building." Provision is then made for the cancellation of contracts in proper cases, for the retention of a per cent. from payments due on monthly estimates, and for the quality of materials used, for preference of Missouri materials and labor, the use of Missouri Section 3 provides for the purchase or con- granite and stone, and that the plans and demnation of certain premises in Jefferson specifications shall be executed by skillful City, adjacent to the old capitol grounds. and reputable architects, contractors, arSection 4 provides for the selection of tists, mechanics, and laborers. Bonds are "plan for a state capitol; said required of contractors, and the preservation plan to be obtained by a competitive archi- and filing of vouchers, contracts, files, and tectural contest," and defines in part the papers is enjoined upon the board "until aftmethod to be pursued in that connection. It er the completion of said building, and shal! then be delivered to the state auditor for proceeds thus: preservation by him in his office. The board is authorized to make all contracts and agreements and employ all the aid and assistance and adopt all means appropriate for carrying out the purposes act." * * * "No plan shall be adopted unless accompanied by a detailed and accurate specification of the approximate cost of material and other expenses necessary for the construction of said building, including heating and ventilating apparatus, lighting, vaults and all proper fixtures and conveniences, nor until it shall be definitely ascertained that the aforesaid cost shall not in the aggregate exceed three ($3,000,000.00) millions of dollars (and the interest received by the state on proceeds of sale of the bonds hereinafter referred to). Said state capitol shall be so constructed and arranged as to afford suitable and adequate offices, compartments and conveniences for the departments of the state government at the seat of government. It shall be a modern, fireproof structure and be constructed of granite, or stone or both and other material suitable and proper to be used in said construc of this |