111 S.W. 44 (Mo. 1908), Weston v. Hanson

Citation:111 S.W. 44, 212 Mo. 248
Opinion Judge:BURGESS, J.
Party Name:GEORGE WESTON et al., Appellants, v. MARY HANSON et al
Attorney:O. A. Lucas, Allen & Allen and J. J. Williams for appellants. Milton Moore and C. O. Tichenor for respondent Mary Hanson.
Case Date:May 19, 1908
Court:Supreme Court of Missouri

Page 44

111 S.W. 44 (Mo. 1908)

212 Mo. 248

GEORGE WESTON et al., Appellants,



Supreme Court of Missouri, Second Division

May 19, 1908

Appeal from Jackson Circuit Court. -- Hon. Hermann Brumback, Judge.


O. A. Lucas, Allen & Allen and J. J. Williams for appellants.

(1) There was substantial evidence that testator was of unsound mind at the time of the execution of the will in question, and that he did not have mental capacity to execute said will, and this case should have gone to the jury upon that issue. Knapp v. Trust Co., 199 Mo. 664; Hill v. Boyd, 199 Mo. 448; Meier v. Buchter, 197 Mo. 88; Elliott v. Welby, 13 Mo.App. 19; Sehr v. Lindemann, 153 Mo. 289; Fulbright v. Perry Co., 145 Mo. 432; Muller v. St. Louis Hospital Assn., 73 Mo. 242, 5 Mo.App. 390; 1 Clevenger on Med. Jur. on Insanity, pp. 347, 348; Southworth v. Southworth, 173 Mo. 73; Rood on Wills, secs. 122, 123; 1 Redfield on Wills (4 Ed.), p. 537; Harrell v. Harrell, 1 Duvall (Ky.) 204; Cassoday on Wills, sec. 460; Ballentine v. Proudfoot, 62 Wis. 220; Walls v. Walls, 99 S.W. 969. (2) There was substantial evidence that testator sustained immoral relations with Mary Hanson, and was under her influence, and that she acquired and exerted such undue influence over the mind of the testator at the time of the execution of the will, that she was made practically sole beneficiary, and upon that issue this cause should have been submitted to the jury. Bush v. Bush, 87 Mo. 486; Gorden v. Burris, 141 Mo. 612; Meier v. Buchter, 197 Mo. 91; Knapp v. Trust Co., 199 Mo. 663; Hill v. Boyd, 199 Mo. 449; Mowry v. Norman, 103 S.W. 15; Sunderland v. Hood, 13 Mo.App. 239; Sunderland v. Hood, 84 Mo. 293; Dean v. Nealy, 41 Pa. St. 312; King v. Gilson, 191 Mo. 327; Bradford v. Blossom, 190 Mo. 143; Roberts v. Bartlett, 190 Mo. 703; Hughes v. Rader, 183 Mo. 630; Dausman v. Rankin, 189 Mo. 707. (3) Where the testator lived in a state of concubinage with defendant, the chief beneficiary, both before and after the will was made, and up to his death, such acts were suspicious circumstances and constituted evidence, along with other facts and circumstances in this cause, of undue influence, upon which this cause should have been submitted to the jury. Sunderland v. Hood, 13 Mo.App. 236; Sunderland v. Hood, 84 Mo. 293; Dean v. Negley, 41 Pa. St. 312; Shipman v. Furniss, 69 Ala. 555; 29 Am. and Eng. Ency. Law (2 Ed.), 130, 131; Smith v. Henline, 174 Ill. 196; Reichenbach v. Ruddach, 127 Pa. St. 564; McClure v. McClure, 86 Tenn. 173. (4) That Mary Hanson exercised undue influence over the testator should be presumed as a matter of law, and the burden should be on proponents to free her of this presumption. Barkley v. Cemetery Assn., 153 Mo. 315; Roberts v. Bartlett, 190 Mo.App. 702; Sunderland y Hood, 13 Mo.App. 232, 84 Mo. 293; Maddox v. Maddox, 114 Mo. 46. (5) The court erred in excluding portions of the depositions of Ellen Mills, and John Mills, and in excluding other competent, relevant and material evidence. Bridwell v. Swank, 84 Mo. 472; Carl v. Gabel, 120 Mo. 297.

Milton Moore and C. O. Tichenor for respondent Mary Hanson.

(1) There is neither substantial nor even unsubstantial evidence to show that Weston did not have sufficient capacity to make a will on June 12, 1899. Archambault v. Blanchard, 198 Mo. 425; Wood v. Carpenter, 166 Mo. 487; Jayne v. Trustees, 192 Mo. 130; Catholic University v. O'Brien, 181 Mo. 91; Brinkman v. Rueggesick, 71 Mo. 556; Von de Veld v. Judy, 143 Mo. 363. Mere opinions of witnesses, unaccompanied by any testimony showing any particular act, or fact, evidencing incompetency, do not make out a case of incompetency when the testimony shows that the testator knew what he was doing and to whom he was giving his property. Southworth v. Southworth, 173 Mo. 73; Leach v. Burr, 188 U.S. 515. (2) There was no evidence of undue influence in the case. Lorts v. Wash, 175 Mo. 505; Kischman v. Scott, 166 Mo. 226; Campbell v. Carlisle, 162 Mo. 646; McFadin v. Catron, 138 Mo. 218; Martin v. Bowdern, 158 Mo. 393; Riley v. Sherwood, 144 Mo. 366. Remarks of Mary not in hearing of testator do not tend to show undue influence. Garland v. Smith, 127 Mo. 583; Defoe v. Defoe, 144 Mo. 465. (3) "He may have formed an attachment for strangers stronger than that for his children, which should not exist, but the law does not prevent him from gratifying his whims or caprice, in the testamentary disposition of his property." Sunderland v. Hood, 84 Mo. 293; Sehr v. Lindemann, 153 Mo. 292; Moore v. Moore, 67 Mo. 193; Berberet v. Berberet, 131 Mo. 411; Maddox v. Maddox, 114 Mo. 47; Schierbaum v. Schemme, 157 Mo. 12. We do not understand that Judge Lamm, in Meier v. Buchter, 197 Mo., entertains a different opinion. The opinion may show that he thinks that the statutes of this State should be changed so as to put limitations upon the power of disposition by will. He says, in effect (p. 87), that where there is substantial evidence of undue influence, unsubstantial evidence like disinheriting an heir may be heard to aid it. In other words, two pieces of unsubstantial evidence do not make substantial evidence -- add unsubstantial evidence to unsubstantial evidence and the result will be unsubstantial evidence -- but if there is substantial evidence which will sustain a verdict, then unsubstantial evidence, like disinheritance, illicit intercourse, etc., is proper to add to the probability of the substantial. See, also, on the subject of undue influence, Berger v. Fevre, 186 U.S. 124. (4) The reasoning in the cases just quoted from applies to cases where illicit intercourse has been shown between testator and beneficiary prior to the making of the will. In its nature it ranks as unsubstantial evidence, but it is admissible where there is substantial evidence of undue influence. A man can will or deed to his mistress because the statute does not prohibit it. The law does not require a grantor or testator to be a virtuous man in order to make a deed or a will -- the law does not require a woman to be virtuous in order to take title by deed or will. Sunderland v. Hood, 84 Mo. 297; Matter of Mondorf, 110 N.Y. 456; Monroe v. Barclay, 17 Oh. St. 317; O'Neal v. Farr, 1 Rich. Law 84; Dickie v. Carter, 42 Ill. 377. The brief of appellants cites Dean v. Nealy, 41 Pa. St. 312. This case is commented on in Sunderland v. Hood, supra. The latest utterance on this subject by the Supreme Court of Pennsylvania will be found in Lewis' Estate, 210 Pa. St. 599. See, also, In re Middleton's Will (N. J.), 59 A. 454. (5) Kindness on the part of a legatee or devisee towards testator is not undue influence, even though they are not related. Campbell v. Carlisle, 162 Mo. 646; Kischman v. Scott, 166 Mo. 226; Mackall v. Mackall, 135 U.S. 167; Norton v. Paxton, 110 Mo. 466. (6) How testator got his property, is not an issue in this kind of suit. Crossan v. Crossan, 169 Mo. 631; Ormsby v. Webb, 134 U.S. 65; Couch v. Gentry, 113 Mo. 257; Glover v. Ins. Co., 130 Mo. 186; Norton v. Paxton, 110 Mo. 467.


Page 45

[212 Mo. 253] 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 one dollar 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 seventy 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 twenty 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 [212 Mo. 254] months, when she went to work as a servant girl for Major 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 toward 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 fifty dollars 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...

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