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