Byrne v. Byrne

• Decision Date: 31 May 1913
• Citation: 157 S.W. 609
• Parties: BYRNE v. BYRNE et al.
• Court: Missouri Supreme Court

157 S.W. 609

BYRNE v. BYRNE et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. WILLS (§ 282) — CONTEST — ALLEGATIONS OF PETITION — MENTAL INCAPACITY.

The petition in a will contest alleged that for several years before the pretended will was executed testator was physically delicate, weak, and infirm, and was suffering with asthma and physical weakness, mental debility, and other derangements; that at the time the alleged will was executed testator by reason of his affliction depended upon others in the management of his affairs, and confided in and trusted the management of his affairs to defendants, who were active, intelligent, etc., and lived with testator; that the will was procured to be drawn by defendants by their fraud and undue influence in fraud of plaintiff's rights as heir; and that both the execution of the will and its probate was procured by fraud and undue influence. Held, that the petition did not raise the issue of mental incapacity.

2. WILLS (§ 324) — CONTEST — JURY QUESTION — MENTAL CAPACITY.

While proponents in a will contest must in making out a prima facie case show mental capacity, such question should not be submitted to the jury unless charged as a ground for setting aside the will.

3. WILLS (§ 52) — WILL CONTEST — BURDEN OF PROOF — MENTAL CAPACITY.

Where contestants allege mental incapacity, proponents have the burden of showing mental capacity.

4. WILLS (§ 821) — CHARGE ON LAND.

An allowance to testator's child made a charge upon the estate devised to another may be enforced against the devisee of the land.

5. WILLS (§ 164) — WILL CONTEST — FRAUD — EVIDENCE.

The mere fact that a devisee of land upon which a yearly sum was charged as payable to another remained silent when testator spoke to him of the subject of paying the charge, and did not afterwards pay it, was not evidence of fraud by him in procuring the will.

6. WILLS (§ 163) — WILL CONTEST — BURDEN OF PROOF — UNDUE INFLUENCE.

The fact that a devisee was managing the business of testator, his father, for a year before making of the will, constituted a fiduciary relation so as to shift the burden of proof upon him to negative undue influence.

7. WILLS (§ 164) — UNDUE INFLUENCE — EVIDENCE.

The unequal distribution of property made by a will is a circumstance to consider on the question of undue influence.

Appeal from Circuit Court, Jefferson County; Jos. J Williams, Judge.

Action by Alice Byrne against James Byrne and others to contest a will. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Kleinschmidt & Reppy, of Hillsboro, Byrns & Bean, of De Soto, for appellants. Geo. Safford, of St. Louis, and R. A. Frazier, for respondent.

GRAVES, J.

Action contesting the last will of Patrick Byrne, who died in Jefferson county, Mo., July 5, 1891. The instrument was executed June 20, 1891, and probated August 8, 1891. Plaintiff is the granddaughter of the deceased, and the defendants are his widow and surviving children. All (with plaintiff and defendants) are mentioned in the will as devisees. We construe the grounds upon which the will is contested to be: (1) Undue influence; (2) fraud; (3) deceit. Mental incapacity is not a specified ground of this contest, although the physical and mental condition is as pleaded, as tending to show that the testator could be unduly influenced, or easily tricked, defrauded, or deceived. Such are taken to be the pleadings, but, out of abundant caution, we will give the language of the petition. For grounds the petition avers: "That at the time at which said pretended will was executed, for several years prior thereto, and at all times thereafter during the life of said testator, the said Patrick Byrne was physically delicate, weak, and infirm; and that during all that time he was suffering from asthma, physical weakness, mental debility, and other derangements; that at the time the said Patrick Byrne executed and signed the said paper purporting to be the last will of the said Patrick Byrne, and for a long time prior thereto, as aforesaid, the said Patrick Byrne was by reason of his affliction and condition dependent upon others in the management of his affairs; and at the time said Patrick Byrne executed and signed said purporting will, and for some time theretofore, the said Patrick Byrne advised with, confided in, and trusted the management of his affairs to the defendants, John Byrne, James Byrne, and Rose Byrne; and that said John Byrne and James Byrne were at all such times strong, active, intelligent, shrewd men, in the prime of life, living with the said testator, Patrick Byrne, and in the general charge of his affairs; and that the said Rose Byrne was at all such times the wife of the said Patrick Byrne, a woman in good health, and in general charge of the said testator and his home; that the said alleged will was prepared and drawn, or procured to be prepared and drawn, by the said defendants, John Byrne, James Byrne, and Rose Byrne, to whom unreasonably large portions of said estate purport to be bequeathed and devised, as aforesaid; and the execution thereof was procured by fraud and undue influence of the said defendants, John Byrne, James Byrne, and Rose Byrne, upon the said testator, Patrick Byrne, in fraud of and to deprive this plaintiff of her rights as an heir at law of the said deceased, Patrick Byrne, testator; that both the execution of said instrument and the probate thereof as and of the last will and testament of the said Patrick Byrne was brought about by fraud, deception, and undue influence of the said John Byrne, James Byrne, and Rose Byrne for the benefits and privileges given them and each of them by the said will; and the plaintiff further stated that, by reason of the premises, the said instrument purporting to be the last will and testament of the said testator, Patrick Byrne, deceased, is not his last will and testament. Plaintiff further states that said alleged will is the result of fraud, in this, that said will and the provisions thereof was procured by James Byrne, son of Patrick Byrne, deceased, by intentionally causing and permitting the said Patrick Byrne, deceased, to hope and believe that he, the said James Byrne, would pay Alice Byrne, this plaintiff, the sum of six dollars from time to time during her minority, when in fact the said James Byrne did not intend to pay the said Alice Byrne said sum or any other sum or sums during her minority, and that the said James Byrne by said will fraudulently, by the acts aforesaid, induced the said Patrick Byrne, deceased, to execute the alleged will, and thereby will him, the said James Byrne, a large tract or tract of land and improvements thereon, and an undue portion of the alleged testator's estate, exceeding in value by several thousand dollars the property to be received under said alleged will by the brothers and sisters of said James Byrne; said acts of fraud contributing with the said undue influence used by said James Byrne, John T. Byrne, and Rose Byrne in causing the execution of said alleged will." The answers are such as would be expected under such a petition, and raised the issues aforesaid. Upon a trial before a jury, the plaintiff had a verdict, and judgment was duly entered thereon. The paper writing was found not to be the last will and testament of the deceased, Patrick Byrne. From such judgment the defendants (proponents of the will) have appealed.

Error is alleged in the giving and refusing of instructions, and in the admission and rejection of evidence. Further details will be noted in connection with the points raised.

I. The verdict in this case will have to be reversed for several reasons. These we will take in order after detailing more of the pertinent facts. The deceased at the making of the will was aged about 71 years, and had been a sufferer from asthma and other troubles. He was a strong-minded man, and had held the positions of judge of the county court and justice of the peace. The plaintiff was the only child of a deceased son, which son at the time of his death (a year or so prior to the death of the father) was well liked by the father. The whole estate was worth from $35,000 to $50,000 — say to be safe $35,000. The will is short, and will speak best for itself. It reads:

"In the name of God, Amen.

"I Patrick Byrne being of lawful and disposing mind, do make known this as my last will and testament."

"First. I give to my son James all my land in survey 3059 township 43 range 4 east together with mill machinery and all appurtenances thereto belonging, with the understanding that he gives Thomas daughter $400.00 when she becomes of age and $6.00 a year during her minority.

"Second. I give to my son Pat 150 acres in survey 1999 together with 11 acres given to me by Elias Burgess in said survey.

"Third. I give to my son John the balance of my land in survey 1999 said to contain 90 acres together with 60 acres in section 36, township 43 range 3.

"Fourth. The upper third of sur. 908 together with 40.24 acres 3 W. fr. 31 — township 43 range 4 together with 27 55/00 acres N. W. Fr sec. 6 township 42 range 4 also 4 76/00 N. E. Fr. sec. 1, township 42 range 3. Also balance of section 36 township 43 range 3 which constitutes the home farm I give to my wife Rose during her natural life to manage as she pleases.

"Fifth. I give to my daughter Mary Jane the sum of $1,200; to my daughter Anna $1,200 and to my daughter Ellie $1,200 in lieu of lands given to my sons. I give to my son Christopher the sum of $500.00.

"Of all my other personal property I give to my wife two-thirds and to my son John one-third. After my wife's death the home place to belong to all my children share and share alike. I also appoint my beloved wife Rose and my son John as executors to execute this my last will without bond. In testimony whereof I have...