Sunderland v. Hood

• Decision Date: 30 January 1883
• Citation: 13 Mo.App. 232
• Parties: DANIEL SUNDERLAND ET AL., Respondents, v. ANN E. HOOD, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 232

DANIEL SUNDERLAND ET AL., Respondents,

v.ANN E. HOOD, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 30, 1883.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded.

CHARLES L. MOSS, for the appellant: The probate court has exclusive original jurisdiction in the probate of wills, and until it has in term passed on a will there exists no right to a contest.-- Banks v. Banks, 65 Mo. 432; Crea sey v. Alderson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310. The petition in this cause should have shown final prior action by the probate court in order to have given the circuit court jurisdiction.-- Benoist v. Murrin, 48 Mo. 48; Dickey v. Malechi, 6 Mo. 177; Harris v. Hays, 53 Mo. 90. All in interest should have been made parties.-- Eddie v. Parker, 31 Mo. 513. In such cases the allegations of the petition must specifically present issues, and the burden of proof as to such issues (as when incapacity, undue influence, want of chastity, etc., are alleged) remains with the party asserting them.-- Rogers v. Frost, 51 Mo. 470; Thomas v. Stump, 62 Mo. 275; Ketchum v. Stearns, 8 Mo. App. 69. “The burden of establishing incompetency, or undue influence, rests on the contestants.”-- Harris v. Hays, 53 Mo. 96; Rankin v. Rankin, 61 Mo. 296. The instructions offered by the defendant should have been given.-- Cravens v. Falconer, 28 Mo. 22; Odenwalder v. Schoer, 8 Mo.App. 465; Brinkman v. Rueggusick, 71 Mo. 553.

KLEIN & FISSE and BROADHEAD & HAEUSSLER, for the respondent: The action was not prematurely brought.-- Potter v. Adams, 24 Mo. 159; Jourden v. Meier, 31 Mo. 40. The first instruction, as to the burden of proof of testamentary capacity, is sustained by all the authorities.-- Elliot v. Welby, No. 2430 Mo. App.; Benoist v. Murrin, 58 Mo. 307, 322; Evans v. Arnold, 52 Ga. 169. The second instruction was, under the circumstances of the case, clearly proper.-- Dean v. Negley, 41 Pa. St. 312, 317. These circumstances well warranted the court to require the defendant to sustain the burden of proof, as declared in the second instruction.--See Garvin's Administrator v. Williams, 44 Mo. 465; Wilson v. Moran, 3 Bradf. 172. The third instruction, defining undue influence, is correct.-- Harvey v. Sullens, 46 Mo. 147, 151. The fifth instruction properly defines testamentary capacity and the formal requisites of a will.-- Harvey v. Sullens' Heirs, 56 Mo. 372; Benoist v. Murrin, 58 Mo. 307, 322; Young v. Ridenbaugh, 67 Mo. 574, 587; Muller v. St. Louis Hospital Assn., 5 Mo. App. 390.

BAKEWELL, J., delivered the opinion of the court.

This was an action by the nephews and nieces, who were also the nearest surviving relatives, of Julius P. Sunderland, to contest the validity of an instrument which had been admitted to probate during the vacation of the probate court, as his last will. The alleged will bequeaths a gold watch and chain to one of the testator's nieces, leaves all the remainder of the property to defendant, and appoints her executrix, and directs that she give no bond. The jury found against the will.

The testimony shows that the testator was a man about sixty years old at the time of his death. He was a man of strong will, and not easily influenced. Some weeks before he died, he was taken sick with a disease of the bladder. He stated to the attending physician that he desired to leave all his property to the defendant, and wished to know whether he was in danger, in order to make his will. On the day before he died, as his case was desperate, an operation was performed to relieve the bladder and diminish his sufferings. He then desired to have an attorney brought. The attorney came on the day of his death. The testator's mind was then lucid. He stated to the attorney that he had given to his nephews and nieces all that he intended to give them, that he disliked them, that they had annoyed him by officious attentions; and he sent for a paper which he had drawn some months before, while in health, and in which he had left all his property to defendant. This instrument was in the form of a will, but was not signed. The testator then said that he believed he would leave his wife's watch to his niece Lilly. The attorney wrote the will according to these instructions, and returned with it, and it was duly executed. The dying man was too weak to write his name, and made his mark. The will was slowly and carefully read to him before he signed it, and he under-stood it.

The wife of the testator died about a year before him, at Delhi, Illinois. They had no children. They were not separated; but he did business and lived in St. Louis, and she at Delhi, where he visited her, going there every Saturday night. For some years before his death, and up to that time, the testator boarded with defendant in St. Louis. The only inmates of the house were the deceased, the defendant, her daughter, and a colored servant girl. He manifested some desire to keep the fact of his living at defendant's house a secret; though he told it to some of his friends. At the time of his sickness his sleeping-room was within hers, and could only be reached through hers; her sewing machine was in his room. Many years before testator's death defendant had lived in the same house with him and his wife, and had been the cause of trouble between them. While Sunderland was sick, his relatives and friends had free access to him, and went freely to see him. There is testimony that he expressed regard for his relatives, and was kind and affectionate to them, and that he treated his niece Lilly as an adopted daughter; and there is testimony that he had no regard or affection for them, and before his death said that they cared, not for him, but for his money. Sunderland's partner, a witness for plaintiffs, testifies that Sunderland once told him that “there would be some fun among his relatives when he died.” This witness said he once tried to persuade Sunderland to leave some furniture he had to his niece Lilly, but he said he would not do so.

It does not appear that there was any influence exerted, in any way, by defendant to procure the making of the alleged will. There is no evidence that she attempted to conceal the fact of his making a will. The attorney who drew the instrument did not know her. She told the partner of the deceased, on the day of his death, what will he intended to make, and asked him to come at five o'clock to witness it. But the will was signed at three o'clock, before the partner got there, and witnessed by the doctor and the attorney. There can be no doubt from the testimony that the deceased knew what he was doing when he made the will, and that he made it in accordance with an intention expressed when in health. The only changes made from the paper originally written for his will, and kept by him and not executed, were the legacy of the watch and the provision as to the defendant's not being required to give a bond. It appears that, when the first paper was drawn, Sunderland did not know that such a provision would be effectual.

Very many witnesses were examined; the evidence is voluminous; it has been examined with care, and I believe the above statement is a fair one, though many details are omitted to avoid prolixity. There can be no question that, had the woman in whose favor the will was made been one as to whom there existed no suspicion of sexual intercourse with the testator, the will must have been sustained upon the evidence, and that, if this element is left out, there is nothing in the case to warrant the submission to the jury of any question of undue influence in procuring the execution of the will. The right exists to pass over relatives, even the nearest, for a perfect stranger, in the testamentary disposition of property. And the question as to a will is not, whether it is such a disposition of property as meets the approval of a jury, but whether it is the will of the testator, not affected by fraudulent representations or unlawful influence unduly exercised over the very act of devising.

There is no direct evidence that the defendant exerted any influence over Sunderland at the time of making his will, unless we are to hold that, if a man knowingly and wrongfully lives in a state of concubinage or adultery, and the woman, by the influence of such...