"A. When the will was read, I wasn't very much pleased with it, and thought at the time, may be, I wouldn't qualify as executor. Me and Ab. Clay talked about it at the time. He would not. He said that he had claims against it. And I had heard Uncle Alex talk a great deal, and I thought possibly-"Q. Tell what was said. Did you tell them what your wishes were about this matter? A. About being cut out of the will? Q. Yes. A. Yes, sir. Q. Did you say to them whether they ought to resist the will? A. I told everybody, from Uncle Alex himself clear down. I had heard my father and my grandfather talk about this, and I never questioned but what they were Milton Anderson's children, and there's none in my mind now, either, gentlemen."

Without undertaking to reconcile these statements as to what English Anderson knew concerning the history of his Uncle Milton's family, it is but reasonable to conclude therefrom that the paternity of Milton's children had been discussed in the family generally.

This is all the testimony bearing upon the subject of undue influence; and in our opinion it amounts to nothing. Taking the testimony as true, it only shows that while the testator was friendly to Albert A. Clay and his family by reason of their long intimate business relations, he did not rely upon his advice or judgment any more, and perhaps not as much as he relied upon the judgment of English Anderson.

Furthermore, according to the testimony of some of the witnesses, the testator was suspicious of Albert Clay, and, if that were true, he certainly was not influenced by him. When the testator came to lease his land to Albert Clay, he called in English Anderson as his advisor. There is no evidence whatever even tending to establish the claim of contestants that Albert Clay had influenced his uncle to omit the Milton Anderson children from his will. Mere suspicions and opinions are not evidence.

In Childer's Exr. v. Cartwright, 139 Ky., 505, we laid down the following rule as to the character of evidence necessary to establish undue influence in the execution of a will:

"The rule is well settled that, after due execution is proved by the propounders, the burden of showing that the instrument is invalid because procured by the exercise of undue influence is upon the contestants. This must be shown by evidence at least tending to establish that undue influence was exercised upon the testator. It

is not sufficient that it be shown that there was an opportunity to exercise undue influence, or that there was a possibility that it was exercised; some evidence must be adduced showing that such influence was exercised. The law permits the owner of property, who is of sound mind and disposing memory, to transmit his property by last will and testament in such manner as pleases him, and juries are not permitted to make for him a will that accords with their ideas of justice and propriety; nor are they permitted to suspect away the right of the testator to dispose of his property in accordance with his own will and desire."

And, in Raison v. Raison., Exr., 148 Ky., 120, we further said:

"It is admissible to show the mental condition of the testator at the time the will is made and his susceptibility to influence by which he was surrounded at the time; but it must be accompanied by some other evidence that the will was executed as the result of undue influence, before the case will be permitted to go to the jury."

Clark v. Young's Exr., 146 Ky., 377, is similar to the case at bar, in the fact that the evidence was there held insufficient to take the case to the jury, and a peremptory instruction was given directing the establishment of the will. Moreover, an examination of the testimony as outlined in the opinion in that case will show that there was perhaps more evidence there tending to show undue influence, than there is in the case at bar. Nevertheless, in sustaining the peremptory instruction in that case, we said:

"That a father may think it best to transfer a feebleminded child from one institution not specially provided with facilities for instructing the child to another created and maintained by the State for educating children so afflicted, is not in our opinion evidence of undue influence on the part of the person who suggests the propriety of such action. Nor can a father be said to be the subject of undue influence for yielding to the suggestion that his young daughter be kept at home and instructed in music by a teacher in a large city like Louisville in preference to sending her to Cincinnati for that purpose. Here then we have a case predicated on opinions based either on the inequality of the will, or the two circumstances above referred to. As neither the inequality of the will nor the circumstances referred to are sufficient to show undue influence or mental incapacity, it follows

that opinions based thereon are likewise insufficient for that purpose. (Smith v. Commonwealth, 129 Ky., 433; Sanders v. Blakely, 21 Ky. L. R., 1321; Bush v. Lisle, 89 Ky., 393). Nor does this conclusion conflict with the scintilla rule, for that rule requires some evidence even though it be slight; and by evidence is meant something of substance and relevant consequence, and not vague, uncertain or irrelevant matter not carrying the quality of proof, or having fitness to induce conviction. (Minnehan v. Grand Trunk, 138 Fed., 37.)"

Under the rule above announced, there was not sufficient testimony to carry the case to the jury, and the circuit judge properly so ruled.

Judgment affirmed.

Martin v. Bates, et al.

(Decided May 30, 1913.)

Appeal from Letcher Circuit Court.

Appeal-Dismissal of-Failure to Place Old Record With New Record. Where there is nothing before the court by which it may be determined whether the judgment appealed from is a compliance with the mandate following a reversal on a former appeal, and rule 7 of the court not having been complied with, the appeal will be dismissed. (For former opinion, see 124 S. W., 873). R. O. BRASHEARS for appellant.

R. MONROE FIELDS and DISHMAN, TINSLEY & DISHMAN for appellees.

OPINION OF THE COURT BY JUDGE TURNER-Dismissing the Appeal.

This case has heretofore been in this court under the style of Martin v. Bently, et al., and the opinion will be found in 124 S. W. Rep., 873.

The court reversed the judgment and directed the entering of a judgment quieting Martin's title "to the land in controversy."

Upon the return of the case the court entered a judment quieting Martin's title to a certain described tract of land which the appellant claims does not embrace the land "in controversy," or at least all of it. But this

record does not contain any of the pleadings or exhibits showing what land was "in controversy" on the former appeal, embracing only the orders and judgment entered since the return of the case to the circuit court. The record on the former appeal is not a part of, and has not been placed with the record on this appeal.

Printed rule seven of this court is as follows:

"When the record of a former appeal in the same cause is necessary to the decision of a subsequent appeal, or when a record already in this court is made part of a record in another case, and not copied into the transcript, the attorney for the appellant must see to it, on pain of having the appeal dismissed, that such old record is placed with the new record before the cause is submitted."

There being nothing before us by which we may determine whether the judgment last entered in the circuit court is a compliance with the mandate of this court, and the above rule not having been complied with, we have no alternative except to dismiss the appeal, and it is so ordered.

1.

2.

Illinois Central Railroad Co. v. J. J. Rice, Judge.

(Decided May 30, 1913.)

Appeal from Muhlenberg Circuit Court.

Writs-Writs Court of Appeals May Issue.-Under section 110 of the Constitution, the Court of Appeals has power to issue such writs as may be necessary to prevent a miscarriage of justice in extraordinary cases where there is no other adequate remedy. Writs-Cases in Which Court of Appeals Will Issue Temporary Writ. The court will issue a temporary writ in such cases where this is necessary in order that an appeal prayed and granted, may not be abortive, there being no other remedy.

TAYLOR & EAVES, TRABUE, DOOLAN & COX, BROWDER & BROWDER, BLEWETT LEE and R. V. FLETCHER for plaintiff.

WALKER WILKINS, MILTON CLARK, C. A. DENNY, T. O. JONES for respondent.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSONGranting writ to stay court of inferior jurisdiction.

Section 110 of the Constitution, prescribing the powers of this court, provides:

"Said court shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions."

Under this provision is has been held that where there is no other adequate remedy, an appropriate writ may be issued by this court to prevent injustice being done in an inferior jurisdiction. In Rush v. Denhardt, 138 Ky., 248, after pointing out that the above constitutional provision gives the court a large discretion, and that this would not be exercised ordinarily to stay a court of inferior jurisdiction from hearing a case in which no appeal could be taken, the court said:

"But we have the power, whenever justice and the right of the matter seem to demand it, to interfere in behalf of a petitioner who has no adequate remedy or means of obtaining relief except to invoke the extraordinary power conferred on this court by the Constitution. And a case might present itself in which the ends of justice would require us to issue the writ to restrain an inferior jurisdiction from doing an act or rendering a judgment that the complaining party in the ordinary course of judicial procedure would have no relief against. As courts are established to administer justice, why should not the highest court in the State, when there is no other adequate remedy, in the exercise of the ample and unquestioned power conferred upon it, lay its superintending hand upon any inferior jurisdiction that is about to commit a judicial wrong and compel it to administer justice according to the right of the case?"

This application by the Illinois Central Railroad Company against J. J. Rice as judge of the Muhlenberg Quarterly Court, is based upon a petition which sets out in brief the following facts: After the decision of this court in Illinois Central Railroad Co. v. River & Rail Coal Co., 150 Ky., 489, the miners in Muhlenberg County, numbering in all about 1,600, conceiving that they were entitled to maintain actions for the damages sustained by them from the failure of the railroad company to furnish cars to the mine operators who employed them, held a number of meetings, the result of which was the determination that the miners should severally file in the Muhlenberg Quarterly court a suit for damages in the sum of $25, the amount of damage being fixed at that sum so that no appeal could be prosecuted from the judg