Wendling v. Bowden

Decision Date06 December 1913
Citation252 Mo. 647,161 S.W. 774
PartiesWENDLING et al. v. BOWDEN et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Clark County; Chas. D. Stewart, Judge.

Action by Ida Wendling and others against Richard Bowden and others, to contest the validity of the will of Samuel Bowden, deceased, and set aside the probate thereof. From a judgment granting relief, proponents of the will appeal. Affirmed.

The respondents instituted this suit in the circuit court of Clark county to contest the last will and testament of Samuel Bowden, who lived for more than a half of a century, and died, in that county in the month of April, 1908. The contestants and proponents are the sole surviving children, who are devisees under the will, as well as the only heirs at law of deceased. The petition charged mental incapacity on the part of the testator to make the will, and undue influence exercised over his mind by the proponents. The answer put in issue those charges, and asked that said will be adjudged the last will and testament of said Samuel Bowden. The will was signed and witnessed on July 5, 1906, nearly two years prior to the death of the testator.

The provisions of the will were substantially as follows:

First. That all of the testator's just debts be paid out of his personal property.

Second. Because as stated, he gave his son, Henry, only $250, for the reason stated therein, "he had previously given him certain personal property and because he had heretofore received certain personal property belonging to me," the testator.

Third. Samuel H. Bowden, his son, was likewise given only $250, because, as stated therein, he had previously given him certain real and personal property.

Fourth. To his daughter, Mrs. Ida Wendling, was given $2,000, free from the control of her husband, which is to be loaned at the highest rate of interest obtainable, she to receive the interest thereon during her life, but no part of the principal, except in case of extreme necessity she might "draw the principal in sums not exceeding $50. The remainder of the principal, at her death to go to her children surviving her."

Fifth. To his son Richard was given the home place, consisting of 110 acres, with the dwelling house and other improvements thereon. This, however, was charged with the payment of all the aforesaid legacies, in case the personal property was insufficient to pay them.

Sixth. Appointed Richard Bowden executor of the will.

On May 9, 1907, the following codicil was duly added to said will: "I, Samuel Bowden, this 9th day of May, 1907, do hereby make and constitute the following as a codicil to the foregoing my last will and testament; I hereby direct and will that the sum of two-thousand dollars, named in item 4 of my will, at my death be by my executor, deposited in Clark County Savings Bank, of Kahoka, Missouri, at the highest rate of interest paid by said bank and the interest thereon be paid annually to my daughter, Ida E. Wendling, until she arrives at the age of fifty years, when the principal is to be paid to her to be held by her as in said item four and at her death to be disposed of as stated in said term four."

A trial was had and after the introduction of all the evidence the court gave the jury a mandatory instruction to find for the proponents as to the charge of mental incapacity, thereby leaving only one issue for the jury to determine, namely: Did proponents, through undue influence and fraud exercised over the mind of the testator, induce him, against his will, to make the will in controversy? This question was, by the court, under certain instructions given, submitted to the jury, who by their verdict answered it in the affirmative. Thereupon the court rendered a judgment seting aside the will, and in due time the proponents filed a motion for a new trial, which was by the court overruled. After taking timely and proper steps therefor, the proponents appealed the cause to this court. Counsel for proponents assign 16 errors, most of which, however, from the views we have taken of the case, are immaterial.

Counsel for appellants strenuously insist that this record contains no evidence which warranted the submission of the question of undue influence to the jury, and that the court should have given an instruction telling the jury that there was no evidence introduced tending to show undue influence on the part of appellants, the proponents, and to return a verdict establishing the will. Upon the other hand, counsel for respondents, with equal vigor and earnestness, insist that the record contains ample evidence to support the verdict of the jury and the judgment of the court.

From this brief statement of the principal legal proposition presented for determination, it becomes necessary for us to review the evidence introduced pro and con upon that question.

Mr. T. L. Montgomery, for the proponents, testified:

That he was an attorney at law, and resided at and practiced his profession at Kahoka, Mo., and in surrounding cities and towns. That he was well acquainted with Samuel Bowden, and had known him for 35 years, knew him intimately, and transacted his legal business. That he prepared the will in question, read it over to him, and signed it as a witness, at the request of the testator. That before he signed it, the testator declared it to be his last will and testament. That at his request he signed the name of the testator to the codicil to the will. That George W. King at the request of, and in the presence of, the testator and himself signed the will as a witness. That he and Bert Gridley attested the codicil at the request of the testator. That he saw both the testator and Gridley sign the codicil. That the codicil was written, signed, and attested in his law office in Kahoka, after having been read to the testator. That he wrote the codicil at the request of the testator, and after hearing it read, the testator stated that it was just what he wanted. That in his opinion at the time the testator signed the will and codicil thereto he was of sound mind and disposing memory. That the testator was about 82 years of age at the time he wrote the will.

On cross-examination he testified that he thought the testator had rheumatism, but knew of no other ailments, except heart disease. At some former time he had a cataract upon one eye, but that had been removed, and after its removal he could see very much better. That the testator could write his name, and usually did so, and in a very good hand. That he did not write his name to the codicil, but he requested the witness to sign it for him. That he wrote a previous will for the testator, which was prior to the death of his wife, but did not remember the provisions of it, nor who was the executor named therein. That he had not made a previous — that is, a second — will to the one in controversy, to his knowledge. That at the time he wrote the will in question, Richard Bowden was residing in the same house with the testator, the home place. That he had no knowledge as to whether or not Richard transacted the business of his father, the testator. That at the time of the testator's death he had no live stock on hand. He had transferred it to Richard by a deed of sale. That the witness wrote the bill of sale at the request of the testator in 1904, and told him, Richard, to have it recorded. Had no knowledge what induced the testator to make the bill of sale, except he stated that he wanted Richard to have the stock. The testator told him how he wanted the will drawn, and he drew it accordingly. Richard was with the testator when the codicil was written. That during the last few years of his life, Richard usually came to town with the testator. The latter did some business with the Exchange Bank. That he, the witness, was president of the bank where the bequest to Mrs. Wendling was to be deposited. The testator paid him for his services for writing the will. There was nothing unusual in having the bill of sale recorded that he could see.

Redirect examination:

Richard was not in the room while the will was being written....

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