Myers v. Hauger

• Decision Date: 24 June 1889
• Citation: 11 S.W. 974,98 Mo. 433
• Parties: MYERS <I>et al.</I> v. HAUGER <I>et al.</I>
• Court: Missouri Supreme Court

11 S.W. 974

98 Mo. 433

MYERS et al. v. HAUGER et al.

Supreme Court of Missouri.

June 24, 1889.

WILLS — UNDUE INFLUENCE.

1. The mental and physical condition of a testator at the time his will is executed, and the provisions of the will itself, are circumstances material to a determination of the question of the use of undue influence by the beneficiaries of the will; and when the will favors some, and excludes others, of testator's children, and the evidence as to whether he was mentally and physically strong at its execution is conflicting, it is proper to so charge the jury trying that issue.

2. When the evidence tends but slightly to show undue influence, it is important that the jury should be correctly instructed as to what constitutes such influence as will annul a will, and it is insufficient to tell them that undue influence is improper influence exerted to induce testator to dispose of his property otherwise than he would have done, and in determining whether such influence was so exerted all the circumstances should be considered.

Appeal from circuit court, Clinton county; C. T. GARNER, Special Judge.

Action by Amanda J. Myers and others against Christiana Hauger and others, to contest the will of plaintiff's father, William Hauger, deceased. Judgment for plaintiffs, and defendants appeal.

S. H. Coon and T. E. Turney, for appellants. Hiram Smith, Thos. J. Porter and J. F. Harwood, for respondents.

BLACK, J.

This is a suit to contest the will of William Hauger on the ground that he was not of a sound and disposing mind, and that it was procured by the undue influence of his wife and three of his sons. By the will the deceased gave to Mrs. Myers and Mrs. Smith, both married daughters, one dollar each. They and their husbands are the contestants. Two sons and one daughter were non-residents, and to each of them he gave one dollar. He gave to his son William H. the sum of $150. The balance of his personal property he bequeathed to his wife, with power to sell the same; and he devised the real estate (some 200 acres) to his wife for life, with remainder to the two remaining sons, namely, Andrew D. and Johnathan. These sons resided with their father, and carried on the farm under his directions. William H., the older brother, resided in the neighborhood. These three sons, namely, William H., Andrew D. and Johnathan, and their mother, are charged with having procured the will by undue influence. The deceased was about 70 years of age. The will was executed on Friday, the 5th December, 1884, between 10 and 11 o'clock A. M. He died on the following Sunday morning. He received a fall, some two years before his death, from which he did not entirely recover. At the time of executing the will he suffered from paralysis of the bladder, so that the physicians were obliged to use a catheter. Mr. Myers, one of the subscribing witnesses, knew the deceased for more than 20 years before his death. This witness says: "When he signed the will I think he was clear-minded. I know he had no fever. Mr. Jones was late getting there, and Mr. Hauger became uneasy. He said to me: `I have worked hard for what little I have, and I intend to do what I please with it.' When the will was read to him he corrected his name. He was a man who would have his own way. He was a firm man. He was sitting up on the bedside when he signed the will. There was no one present in the room when he was dictating the will but Mr. Corn, who drew the will, and the two witnesses, myself and Mr. Jones. He dictated the whole will; no suggestions were made to him by any one. He gave all the directions, and named all the children. When it was concluded he had his wife called, and he told her to bring him his money. She brought a box to him, in which there were some papers, and he took from it the money, and paid Mr. Corn for writing the will. When he had done he said: `This will stop Bill Myers from blowing.' He did not talk loud or plain." Dr. King, who saw the deceased on the night of the 3d and again on the evening of the 5th December, 1884, testified: "I examined him closely on the first visit, and again on the second, but not so closely The last time I saw him he was very feeble. I questioned him, and he answered rationally. I considered his mind sound. He was capable of comprehending the extent and character of his property. He was weaker and sinking. From my knowledge of him, on the 5th day of December, 1884, I thought him of sound mind, but in his weakened health his mind was not as strong. When I got there he was laboring under the effects of an opiate. He was stronger on the evening of the 3d than of the 5th." The substance of the evidence of the two daughters, who are contestants, is that they arrived at their father's house on Thursday, that he did not know them until they had removed their wraps; that from Thursday night on he was not rational. Mrs. Myers testified: "I knew nothing about a will until I saw Mr. Corn there. Then it struck me that that was what he came for. Polk went to the foot of the bed, and said: `Pap, you can't make a will until Tom Jones comes.' Polk came out, and told Dick to go after Mr. Jones. They did not do anything until Mr....