Weston v. Hanson

• Citation: 212 Mo. 248,111 S.W. 44
• Parties: WESTON et al. v. HANSON et al.
• Decision Date: 31 March 1908
• Court: United States State Supreme Court of Missouri

111 S.W. 44

212 Mo. 248

WESTON et al. v. HANSON et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1908.

Rehearing Denied May 19, 1908.

1. WILLS—TESTAMENTARY CAPACITY.

Whether testator has testamentary capacity depends on whether he has sufficient intelligence to know what property he owns, what

disposition he is making of it, all the persons who reasonably come within the range of his bounty, and to transact his ordinary business affairs.

2. SAME—EVIDENCE—BURDEN OF PROOF.

Where testator makes an unnatural disposition of his property, the burden of establishing the validity of the will is on the person claiming under it.

3. SAME—EVIDENCE.

Evidence held sufficient to establish that testator had testamentary capacity at the time he executed the will in question.

4. SAME—"UNDUE INFLUENCE."

"Undue influence" inducing the execution of a will is such as amounts to force, coercion, or overpersuasion which destroys the testator's free agency and will power, and not merely the influence of affection or desire to gratify the wishes of one who is near and dear to him.

5. SAME—EVIDENCE.

That testator, both before and after his wife obtained a divorce from him, became enamored of his wife's niece, to whom he bequeathed the bulk of his property, and with whom he was shown to have sustained illicit relations, was insufficient to establish undue influence, where it appeared that testator was a man of strong will, and after the divorce went alone to his attorney and procured the execution of the will according to his own desires, without the beneficiary's interposition.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Suit by George Weston and others against Mary Hanson and another. Judgment for defendants, and complainants appeal. Affirmed.

O. A. Lucas, Allen & Allen, and J. J. Williams, for appellants. Milton Moore and C. O. Tichenor, for respondents.

BURGESS, J.

This is a suit to set aside the will of Thomas Weston, deceased, on the grounds of testamentary incapacity, and undue influence on the part of defendant Mary Hanson. The contestants are the children and lawful heirs of the testator. By the terms of the will in controversy, dated June 12, 1899, the entire property of the testator, amounting in value to about $15,000, is given to the defendant Mary Hanson, with the exception of $1 bequeathed to each of the plaintiffs. A demurrer to the evidence was sustained by the court, and the jury, by mandatory instruction of the court, returned a verdict sustaining the will. Judgment was entered accordingly, from which judgment, after ineffectual motions for a new trial and in arrest, plaintiffs appeal.

Thomas Weston, by birth an Englishman, died in February, 1904, at the age of about 70 years. He first met the defendant Mary Hanson in England, while over there with his wife and one of his daughters. The young woman was a niece of his wife, and about 20 years of age. From the first he showed a marked affection for the young woman, and she apparently for him. He again visited England in 1895, and brought Miss Hanson to this country upon his return and she stopped at his home in Kansas City for five months, when she went to work as a servant girl for Maj. Jones. The evidence for the contestants, which is very voluminous, tends to show that, before the coming of Mary Hanson, the testator was kind to his family and provided well for them; but that, after she came, his conduct and bearing towards his family began to change. He seemed to care far more for the society of Mary Hanson than for that of his wife or daughter Mary, who were the only members of his family then living with him, and he treated his wife with great disrespect, repeatedly cursing her and applying to her the vilest epithets, such as "old bitch," "she-devil," etc. He demanded that his wife get a divorce from him, and one witness testified that the testator offered him $50 upon condition that he (witness) would cause some trouble in the testator's family which might bring about a divorce proceeding. Once in the presence of the Hanson girl, he beat, choked, and cursed his wife, while the girl did nothing to restrain him. So harsh and cruel became his treatment of his wife, and so pronounced his attentions to the defendant, that his wife finally sought for a divorce and secured the same on June 8, 1899. Four days afterwards he made the will in question. The day after the divorce was obtained, he conveyed part of his property, by deed, to his former wife, and she relinquished her dower interest in the remainder of his real property. A former will of the testator, dated November 10, 1893, was introduced in evidence. By that will he left all his property to his wife and children. The evidence shows that the testator was a powerful man physically, and had been a hard worker most of his life, was shrewd in business, and possessed considerable property. He owned five houses on Central street, Kansas City, in one of which he lived; also two farms, comprising 110 acres, within a few miles of Kansas City. Near the corner of Wyandotte and Thirty-Ninth street, Kansas City, about a block from his residence, he owned a large lot, which he turned into a vineyard, and on this piece of ground he built for himself a little house, which was called the "Grapery." This cottage, it appears, was a favorite resort of Mr. Weston and the defendant, Mary Hanson. The girl worked as a servant for different families, not staying long in any place, and spent most of her evenings at the testator's house; he usually accompanying her on her return to her employer's house. She was employed for a time by a Mr. Lee, whose home was close to the lot in which was the little cottage referred to, and she was frequently seen going into this cottage, one witness testifying that she saw Mr. Weston and Mary Hanson coming out of said cottage about 12 o'clock one night, some months before Mrs. Weston obtained the divorce, and the evidence was that they were a great deal together.

The deed from Mr. Weston to his divorced wife, and which was dated June 9, 1899, was introduced in evidence. For a recited consideration of $6,000 it conveys to her, her heirs and assigns, lots 13, 16, and 17, and part of lot 14, in Arnold's resurvey of Cross's addition to Westport, now a part of Kansas City, Mo. In addition to this deed, Mrs. Weston testified that the testator also gave her $700 in money. On the same day this deed was executed, Mrs. Weston gave to the testator a quitclaim deed to lots 4, 5, 15, and part of lot 14 in said addition to Westport, now a part of Kansas City; also to two farms in Jackson county, Mo., comprising about 110 acres. This latter deed was made by Mrs. Weston for the purpose of relinquishing her dower interest in the real property described, and which was owned by the testator. The question was asked Mrs. Weston if she believed her husband knew what he was doing at the time he executed the deed to her. She replied that she did not know, and did not know whether he was in his right mind or not. Being asked if she thought he knew enough to take the quitclaim deed relinquishing her dower in the rest of his property, she answered: "I suppose he did." Mrs. Weston further testified that prior to 1895, when Mary Hanson came over from England with Mr. Weston, the relations existing between the testator and his family were all right, but that, after Miss Hanson came, the testator's bearing and conduct towards her and the children changed; that he would not allow her to do anything for him, and Miss Hanson did it all; that the testator had ulcers on his legs, which he would allow no one to bandage or dress except the defendant; that he told his children to stay away from the house, and he did not want them there; that he treated Miss Hanson well, and gave her money; that Miss Hanson stayed with them five months when she first came over, and then went to work as a servant for a Maj. Jones, and afterwards for a Mr. Lee. "Q. Did you ever see her and Mr. Weston together at any time, or going out together, while she was at your house, or while she was living at other places? A. Yes, sir. Q. Well, when and where? A. Well, she used to go out to the farm and different places. Q. Would you see them often, or otherwise? A. Very often, sir. Q. Would they come back the same day? A. No, sir; sometimes they would come back the same day, and sometimes they would stay a week. Q. What, if anything, did you ever see her doing to Mr. Weston? A. She used to fix his leg and do everything for him that had to be done. Of course, he wouldn't let me do anything for him. Q. Go ahead, and state anything else you ever saw them doing? A. While he was laying sick in bed one day, she came down from Mr. Lee's, and she lifted up the sheet and kissed him. I saw her do that. Q. State anything else, Mrs. Weston, that you recall of their actions towards each other; what was done, or what they did? A. Well they was always together. I never knew anything else when she was there. He used to go out with her at night, and he used to stay until a late hour and never come in, and I used to lay down on the little couch at the side of the door to hear when they came in, for fear I should not hear him. He used to try the door very gently. I always stayed up until he came in, and I used to lay on that couch so I could hear when he came to the door, so that I never scarcely went to sleep; and he said: `Why don't you go to bed.' Q. Did you ever see them at any other time go to this cottage in the vineyard? A. Yes, sir; I saw them go often. Q. Now, do you know how many times you ever saw them go into that cottage? A. No, sir; but I know they went very often. They were there mostly every night, I know that. Q. Was that before or after the divorce was obtained? A. Before. Q. Did you ever go away from home and leave them there at the house? A. Yes, sir; sometimes. I had to go to town to my boys and get what I had...