Turner v. Butler

Decision Date06 December 1913
Citation161 S.W. 745,253 Mo. 202
PartiesEUGENIE TURNER and GEORGE W. TURNER, Appellants, v. MARY BUTLER et al
CourtMissouri Supreme Court

Appeal from Boone Circuit Court. -- Hon. N. D. Thurmond, Judge.

Affirmed.

Gillespy & Conley for appellants.

(1) The court should have submitted to the jury the issue of undue influence, as the evidence was substantial enough to raise a presumption of undue influence and was substantial enough to show undue influence without the presumption. (a) Where one stands in a confidential or fiduciary relation to testator and a will is made in his favor there is a presumption of undue influence. Mowry v. Norman, 223 Mo. 476, 204 Mo. 189; Roberts v. Bartlett, 190 Mo. 702; Bradford v. Blossom, 190 Mo. 143; Bausman v Rankin, 189 Mo. 708; Maddox v. Maddox, 114 Mo 40; Hegney v. Head, 126 Mo. 619; Gay v Gilliam, 92 Mo. 263; Dingman v. Romine, 141 Mo. 475. (b) Undue influence need not be proved by direct and positive evidence, but it is sufficient if it can be shown by or inferred from the facts and circumstances in evidence. Mowry v. Norman, 204 Mo. 193; Roberts v. Bartlett, 190 Mo. 700; Bradford v. Blossom, 190 Mo. 139. Nor is it required that the acts of undue influence were exercised at the exact time of the execution of the will, but it is sufficient to show that such influence had been acquired previously and did operate at the time of the making of the will in the disposition of the testator's property. Mowry v. Norman, 204 Mo. 193; Taylor v. Wilburn, 20 Mo. 310. (2) The evidence of Sebastian as to conversations with Butler at the time of the attempt to make a will should have been given. In stating that the rule of exclusion of confidential communications with attorneys and physicians does not terminate with the death of the client, care must be taken to distinguish between cases where disputes arise between the client's representatives and strangers and those in which both of the litigants claim under the client. As to the latter class it would be obviously unjust to determine that the privilege should belong to one claimant rather than the other. Thompson v. Ish, 99 Mo. 176; Green v. Railroad, 211 Mo. 42; Graham v. O'Fallon, 4 Mo. 342; Russell v. Jackson, 9 Hare, 392; Scott v. Harris, 113 Ill. 447; Winters v. Winters, 102 Iowa 53; Glover v. Patton, 165 U.S. 394; 4 Wigmore on Evi. sec. 2329; In re Shapter, 35 Colo. 578. Our statutes put physicians and lawyers on exactly the same grounds. Thompson v. Ish, 99 Mo. 177; Ex parte Gfeller, 178 Mo. 267. (3) The court erred in modifying plaintiffs' instruction 2. The modification consists in erasing the words "a preponderance of" and "the defendants have shown by such preponderance of" and inserting in lieu of the last "it has been so shown by the." The prejudicial error in the alteration is that whereas plaintiffs' instruction specifically directed the attention of the jury to the point of law that the burden of proof was on the defendants throughout the trial to establish unsoundness of mind, the alteration leaves the instruction in such form that they would not gather from it that such was the law. The instruction as asked was one given in the case of Mowry v. Norman, 223 Mo. 472, which was challenged in this court and was approved after discussion. The approved instruction is verbatim the same as the rejected instruction in this case.

Harris & Finley and Whitecotton & Wight for respondents.

(1) The court did not err in withdrawing the issue of undue influence from the jury. (a) The evidence was insufficient to raise a presumption of undue influence, based on confidential relations. Campbell v. Carlisle, 162 Mo. 634; Seibert v. Hatcher, 205 Mo. 83; Dausman v. Rankin, 205 Mo. 83; Luebbert v. Brockmeyer, 158 Mo.App. 210. (b) The record discloses no evidence, circumstantial or otherwise, tending to show undue influence. Gibony v. Foster, 230 Mo. 106; Weber v. Strobel, 236 Mo. 649; Turner v. Anderson, 236 Mo. 523; Hayes v. Hayes, 242 Mo. 155. (2) There is no reversible error in the exclusion of the evidence of the witness Sebastian as to conversations had with testator while acting as his attorney. (a) No exception was saved to the ruling of the court on this point. Rearden v. Railroad, 215 Mo. 135; Wycoff v. Hotel Co., 146 Mo.App. 562; Roe v. Bank, 167 Mo. 426. (b) The evidence was not admissible under the statute. R.S. 1909, sec. 6362; Sweet v. Owens, 109 Mo. 7; Hamilton v. Crowe, 175 Mo. 634; Cross v. Riggins, 50 Mo. 335; Johnson v. Sullivan, 23 Mo. 474; Pinson v. Campbell, 124 Mo.App. 260; Henry v. Buddecke, 81 Mo.App. 365. (c) The excluded evidence could not have affected the verdict, and even if admissible should not work a reversal of the judgment. Hamilton v. Crowe, 175 Mo. 649. (3) The court did not err in modifying appellants' instruction numbered 2 as to burden of proof. Berger v. Storage Co., 136 Mo.App. 43; Clark v. Kitchen, 52 Mo. 316; Berry v. Wilson, 64 Mo. 164; Cramer v. Nelson, 128 Mo.App. 398. (4) The judgment is for the right party and should be affirmed. (a) The evidence entirely fails to justify the court in submitting the issue of mental capacity to the jury. Gibony v. Foster, 230 Mo. 106; Winn v. Grier, 217 Mo. 421; Archamboult v. Blanchard, 198 Mo. 384; Sayre v. Princeton, 192 Mo. 95; Story v. Story, 188 Mo. 110. (b) Where the verdict is for the right party the judgment should be affirmed even though errors may have been committed in the trial of the case. Shuepbach v. Gas Co., 232 Mo. 603; R.S. 1909, secs. 1850, 2082.

OPINION

BROWN, C.

This is a statutory contest of the will of John Butler, late of Boone county, Missouri, by plaintiff, his granddaughter, against his widow, four children, Loutitia Phelan, Mary Woods, Martin Butler and Lizzie Vantine, a grandson, John Butler, only heir of a deceased son, William Butler, and Butler and Thornton Stewart, grandsons, who with plaintiff are the three heirs of a deceased daughter, Annie Butler Stewart. The executors are also made parties. The grounds of the contest are fraud, undue influence, alteration of the instrument after signature and unsoundness of mind.

At the close of all the evidence the court withdrew the issue of undue influence from the jury and refused all instructions offered by plaintiffs on this issue. The case was submitted on the sole issue of unsoundness of mind.

The will in question was made and signed December 8, 1895, when the testator was about eighty years of age. Although he had been a man of considerable vigor and business ability he had for some time been suffering from a general breaking down incident to old age, and had been practically confined to his house for some months previous to the making of the will. The evidence tended substantially to show that at that time he was not of sound and disposing mind, although some of the numerous witnesses introduced by contestants testified that they considered him all right in that respect.

The undue influence relied on is particularly charged in the petition to have been exerted by defendant Loutitia Phelan and her husband, Vincent D. Phelan, over the diseased and weakened mind and will of Butler while he was sick and under the influence of intoxicating liquors and drugs administered by them as well as other artifices without which he would not have signed and published the alleged will. As a matter of fact the Phelans lived on Mr. Butler's land about two miles from his residence. Mrs. Phelan was the only child who lived in Boone county and she and her husband were frequently at the Butler home; and while Mr. Phelan did not wholly superintend the operations on the testator's farms, his advice was sought by the hands and his suggestions were followed in the absence of Mr. Butler. The latter does not seem to have known much about the technical description of lands. He seems to have been helpless in the presence of a map or survey, and depended entirely on Phelan, who seems to have been expert in such matters, and said that he could describe the entire real estate holdings of Mr. Butler without a map. Mr. Carter, Mr. Butler's attorney, when writing the will in question, had difficulty in describing the land and availed himself of the services of Mr. Phelan who was at the Butler home at the time, as was Mrs. Butler, who is shown by the evidence to have been taking an active part in Mr. Butler's affairs. Mr. Phelan had said to both his wife's sister-in-law and her son that he had been the business manager and legal adviser of Butler for two years before his death, although there is nothing in the evidence to indicate that he was a lawyer or had any special training in that direction.

In the latter part of February or the first part of March, 1906, Mr Stephen March received word from Mr. Butler through some neighbors to come to write a will. He found Mr. Butler in bed or in a reclining chair and said that he wanted Mr. March to rewrite a will. Mrs. Butler got the old will, the one in controversy here, and handed it to Mr. March. Mr. Phelan was not there. He got his map for Mr. March to look over and pick out certain pieces of land in which he wanted to make a change. March told Mr. Butler that he was not accustomed to that kind of work, and would rather have some one to assist him because he might get it wrong. Mr. Butler proposed Mr. W. W. Brundage, who did not come, and March suggested Mr. Phelan. Butler said, "He is the very man," and they telephoned for him and he came. In the meantime Mr. Butler asked Mr. March to read the will until he got to "Marty" and then stop. By that time Mr. Phelan was there. At Mr. Butler's direction Mr. March copied the will as far as the beginning of the devise to Martin E. Butler, and had finished when Mr. Phelan came. He then told him the trouble and...

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