Mowry v. Norman

• Decision Date: 29 May 1907
• Citation: 103 S.W. 15,204 Mo. 173
• Parties: IRENA MOWRY and MARY KETTERING, Appellants, v. MARION NORMAN
• Court: Missouri Supreme Court

103 S.W. 15

204 Mo. 173

IRENA MOWRY and MARY KETTERING, Appellants, v. MARION NORMAN

Supreme Court of Missouri, First Division

May 29, 1907

Appeal from Nodaway Circuit Court. -- Hon. Wm. C. Ellison, Judge.

Reversed and remanded.

J. B Newman and John Kennish for appellants.

(1) The burden of proving that testator was of sound mind, that is of testamentary capacity, is on proponent of the will throughout the trial. Norton v. Paxton, 110 Mo. 462; Jones v. Roberts, 37 Mo.App. 173. If there is any substantial evidence, direct or inferential, that testator was not of testamentary capacity, or that the pretended will was the result of undue influence, the case must go to the jury. Knapp v. Hanley, 108 Mo.App. 360; Charles v. Patch, 87 Mo. 463. (2) In this case there existed a close confidential relation between testator and the proponent, and the law "indulges the presumption that undue influence has been used." Campbell v. Carlisle, 162 Mo. 644; Hegney v. Head, 126 Mo. 627; Bradford v. Blossom, 190 Mo. 143; Roberts v. Bartlett, 190 Mo. 702; Dausman v. Rankin, 189 Mo. 708. One who has charge or general management of a testator's affairs, stands in a close and confidential relation to such testator, the same as an attorney, etc. 2 White & Tudor's Leading Cases in Equity, pt. II, p. 1187. The burden being on proponent by reason of the close confidential relation, he has the further burden of making an explanation of the unequal and unnatural provisions of the will. Maddox v. Maddox, 114 Mo. 49; Gay v. Gillilan, 92 Mo. 264. (3) In this case it was the province of the jury, under all the facts and circumstances in evidence, to pass upon the question of undue influence -- as to whether the presumption of undue influence was removed by the evidence on the part of the respondent. King v. Gilson, 191 Mo. 327. The Supreme Court will not weigh evidence in a law case. Harrison v. Lakenan, 189 Mo. 609. Whether any witness in the case testified to the truth is a question for the jury. James v. Life Ass'n, 148 Mo. 15. "It is an invasion of the province of the jury for the court to direct them that they must accept as true and act upon the evidence of witnesses." Dawson v. Wombles, 111 Mo.App. 540.

W.W. Ramsay and L. C. Cook for respondent.

(1) When the proponent made a prima-facie case by the examination of the attesting witnesses, and the introduction of the will in evidence, the burden of proof to sustain intestacy devolved upon contestants, and remained there until the close of the case; and unless they introduced substantial evidence, sustaining the charges that the will was not executed according to law, and that decedent was mentally incompetent to make a will, and that the will was the product of undue influence exercised by proponent, or at least to sustain one of these charges, then the peremptory instructions given by the court were correct. Riggin v. Westminster College, 160 Mo. 570; Crowson v. Crowson, 172 Mo. 691; Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Carl v. Gable, 120 Mo. 283; McFadin v. Catron, 138 Mo. 197; Fulbright v. Perry County, 145 Mo. 432; Sehr v. Lindeman, 153 Mo. 276; Tibbe v. Kamp, 154 Mo. 545; Lorts v. Wash, 175 Mo. 487; Schierbaum v. Schemme, 157 Mo. 1; Hughes v. Rader, 183 Mo. 704. (2) With the presumption in favor of testamentary capacity, there was no substantial evidence of want of such capacity, at the time of making the will, which would justify the court in allowing the case to go to the jury on that issue. Sehr v. Lindeman, 153 Mo. 203; Campbell v. Carlisle, 162 Mo. 634; Maddox v. Maddox, 114 Mo. 46; Crowson v. Crowson, 172 Mo. 691; Von de Veld v. Judy, 143 Mo. 637; Southworth v. Southworth, 173 Mo. 59; Crossan v. Crossan, 169 Mo. 161; Benoist v. Murrin, 58 Mo. 307; Cutlar v. Zollinger, 117 Mo. 101; Farmer v. Farmer, 129 Mo. 538; Hamon v. Hamon, 180 Mo. 685; Catholic University v. O'Brien, 181 Mo. 68. Nor did the fact that Wesley Norman during the last years of his life, and especially during his last sickness, six years after the execution of the will, forget and miscall the name of his grandson, throw any light upon his mental condition at the time the will was written. Hamon v. Hamon, 180 Mo. 698; Van Alst v. Hunter, 5 Johns. Ch. 248. Nor will the court attach significance to the fact that testator was reticent concerning the execution of the will, and never mentioned it to contestants, or to his wife. Gibson v. Gibson, 24 Mo. 233; Sehr v. Lindeman, 153 Mo. 292; Cawthorn v. Haynes, 24 Mo. 238. (3) There was no substantial evidence tending to show undue influence. There is no fact or circumstance, act or word, done or said by proponent, or anyone else for him or in his presence, which supports or tends to support the charge of undue influence upon his part. Berberet v. Berberet, 131 Mo. 399; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Jackson v. Hardin, 83 Mo. 185; Doherty v. Gilmore, 136 Mo. 414; Carl v. Gable, 120 Mo. 283; Cash v. Lust, 142 Mo. 630; Aylward v. Briggs, 145 Mo. 604; Messmer v. Elliot, 184 Pa. St. 41; Sehr v. Lindeman, 153 Mo. 276. Such contractual relations as existed between proponent and his father in this case, instead of being fiduciary in their nature, and looked upon with suspicion and distrust, as appellants contend, are highly proper and trust-worthy, and have been upheld and sustained by courts of equity in this State in the following cases: Halsa v. Halsa, 8 Mo. 303; Wright v. Tinsley, 30 Mo. 380; Gupton v. Gupton, 47 Mo. 37; Sutton v. Heydon, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Davis v. Hendricks, 99 Mo. 478; Healy v. Simpson, 113 Mo. 340; Teats v. Flanders, 118 Mo. 660; Brownlee v. Fenwick, 103 Mo. 420; Sitton v. Shipp, 65 Mo. 297; Berry v. Hartzell, 91 Mo. 132; Taylor v. Bonshrader, 107 Mo. 206; Veth v. Garth, 92 Mo. 97; Hager v. Hager, 71 Mo. 610; West v. Bundy, 78 Mo. 407; Hiatt v. Williams, 72 Mo. 214; Anderson v. Shockley, 82 Mo. 250; Nowack v. Berger, 133 Mo. 24; Anderson v. Scott, 94 Mo. 637; Hubbard v. Hubbard, 140 Mo. 300; Goodin v. Goodin, 172 Mo. 40; Kinney v. Murray, 170 Mo. 700; Steele v. Steele, 161 Mo. 566; McElvain v. McElvain, 171 Mo. 244; McKee v. Higbee, 180 Mo. 263; Lynn v. Hockaday, 162 Mo. 111; Asbury v. Hicklin, 181 Mo. 658; Grantham v. Gossett, 182 Mo. 651; Johnson v. Quarles, 46 Mo. 427; Brevator v. Creech, 186 Mo. 558; Rosenwald v. Middlebrook, 188 Mo. 58; Russell v. Sharp, 91 S.W. 134.

GRAVES J. Woodson, J., not sitting.

OPINION

GRAVES, J.

Action in the Nodaway Circuit Court contesting the will of Wesley Norman, who died in Nodaway county, Missouri, April 25, 1904, aged seventy-nine years, leaving surviving him, a widow, aged about eighty years, and three children, two daughters, Irena Mowry and Mary Kettering, the plaintiffs in this action, and one son, Marion Norman, the defendant.

The property of Wesley Norman chiefly consisted of a farm of two hundred acres of the value of sixteen thousand dollars. Grounds of contest as alleged in the petition are mental incapacity and undue influence. Upon the close of the whole case, the trial court gave a peremptory instruction to the jury to find that the paper writing offered in evidence was the last will and testament of Wesley Norman, deceased. Verdict in accordance with said instruction, upon which verdict in appropriate terms judgment was entered. Perfecting their record by an unsuccessful motion for a new trial, the plaintiffs duly appealed to this court.

Under these circumstances a close review of the evidence for plaintiff will be required, for if they have substantial evidence upon either ground, it was a question for the jury and not the court. The will, omitting the description of the real estate therein contained, is as follows:

"Be it remembered, that I, Wesley Norman, of the county of Nodaway, in the State of Missouri, being of sound mind and free from all undue influences, hereby revoking all former wills by me made, do make this my last will and testament in manner following, that is to say: I give, bequeath and devise my estate and property, real and personal as follows:

"First. I give and bequeath to my oldest daughter, Irena Mowry, the sum of one dollar.

"Second. I give and bequeath to my second daughter, Mary Kettering, the sum of one dollar.

"Third. I give, bequeath and devise to my only living son, Marion Norman, all the residue of my property of all kinds whatsoever, together with my real estate, described as follows, to-wit: [Description omitted], with this provision, that my aforesaid son, Marion Norman, is to take proper care and provide for my beloved wife, Mary Norman, her natural lifetime, should she survive me.

"Fifth. I hereby appoint and constitute my son, Marion Norman, the only and sole executor of this my last will and testament, without bond.

"In witness whereof, I have hereunto signed and sealed this instrument and published the same as and for my last will in said county of Nodaway and State of Missouri, on this 15th day of September, 1898."

By A B. Talbott and C. H. Talbott, the two subscribing witnesses, the defendant made out the prima-facie case, introduced the will and rested. From these witnesses it appears that it took three hours to produce the instrument in its present form -- from nine a. m. until about noon. It also appears that C. H. Talbott, who drafted the will, practiced law in the justices' courts and had been cashier of a bank for several years, and he testified that the will was written by him without a form book; that after it was executed it was given to him to keep, and he kept it until after the death of the testator; that he then notified Marion Norman that he had the will, but did not tell the wife or any other member of the family, although they were where he could have...