Andrew v. Linebaugh

Citation169 S.W. 135,260 Mo. 623
PartiesANNA R. ANDREW et al., Appellants, v. MARY A. LINEBAUGH et al
Decision Date14 July 1914
CourtUnited States State Supreme Court of Missouri

Appeal from Nodaway Circuit Court. -- Hon. William C. Ellison Judge.

Affirmed.

Cook Cummins & Dawson for appellants.

(1) Contestants should have been permitted to show the state of testator's feelings toward his son Francis. There is possibly no thought in determining the validity of any will that is more potent than the feelings which a testator may have had for his offspring. That thought has perhaps been contained in the instructions of every will case coming before the court. The views of the trial court were that the testator's affections for any one of his offspring who is not contesting the will were immaterial; and that whether he hated or disliked the ones who are wanting to sustain the will, is likewise immaterial. The court refused to permit us to show the state of testator's feelings for Francis, as he was not contesting the will. In this case, as in all others, the jury has been told that the testator's affections for the different members of his family, and the natural objects of his bounty, is a proper subject for them to consider. That being true, what difference could it make whether these members of the family or objects of his bounty were sustaining or fighting the will? Could it be said that if perchance a disliked or wayward child had received an estate to the detriment of one beloved and respected, a jury were not entitled to know that fact, and consider it in determining the "soundness of mind" of the one who had made such a will? In this cause Francis was the second child of the deceased, and was with him at the time the foundation of this fortune was laid. He was the father of the plaintiff Anna Andrew, and we say that we ought to have been permitted to show the relations and feelings that existed between this son and his father, as it might tend to throw light on the mental capacity of Mr. Linebaugh at the time he made a will, disinheriting the grandchild, Anna. Mowry v Norman, 223 Mo. 471. (2) It will be remembered that the will was left by Rogers with Mr. Linebaugh, unsealed. The facts stated in an offer of proof will be considered by the appellate court as proved. Leicher v. Keeney, 98 Mo.App. 394. On the trial Mrs. Linebaugh and Jeff appeared as witnesses. Julia and Etta are shown in the record to have been present with the mother. Julia is shown to have likely had more information concerning her father than any other person mentioned in this cause. The contestants offered to prove by the mother that after Mr. Linebaugh died these four people, the mother and three children, Jeff, Etta and Julia, had a meeting at the Linebaugh home before they brought the will to be probated; that in that conference Julia was determined to contest the will and that to keep her from doing so, and to keep her on their side of the case, the other three agreed that she should be paid $ 6000 out of the personal property belonging to the estate. The court refused this offer. The four principal beneficiaries of the will have it unsealed in their possession before it is brought to probate. One of these was determined to contest the will. She was the one who had acted as the clerk of the father and was therefore familiar with his business and its conduct. She is shown to have been with him on a great many occasions during the last summer of his life in his home, and driving him about the country. Unquestionably a powerful witness, and these facts the other three knew. They didn't want her to appear against this will, and were determined that she should not do so, but she likewise was determined the other way. They saw the danger if they permitted this woman to join in a contest of the will, and so they hired her not to do it, contracting to pay her $ 6000 if she would help them and not help their adversaries. Julia appeared at the trial, earning her money, for in the testimony of the mother she is spoken of as "this daughter by my side." She doesn't testify, in all probability because of the fear that her wrong doing would be exposed. It is a most striking example of moral bribery (if not legal), and we say that the jury ought to have been permitted to know that it had occurred. It would not only reflect on the credibility of the two conspirators who testified at the trial, but would have let the jury know why Julia appeared at the side of the mother, supporting the cause of Jeff and fighting through the power of her influence the cause of these plaintiffs. Not only that, but unquestionably these plaintiffs because of this bribery were deprived of the assistance of the one who in fact knew the truth as to the condition of her father. If the time has come that adversaries may be lined up in court at the rate of $ 6000 a head, then trials become a farce. (3) The instructions given to the jury for proponents are misleading, voluminous and confusing; and taken as a whole are one-sided, unfair and prejudicial. The instructions given for proponents form a charge of about 2500 words. They are nineteen in number and fill about eleven pages of well printed matter in the record, containing numerous repetitions and giving undue prominence to proponents' side of the case. Heman v. Hartman, 189 Mo. 24; Sidway v. Stock Co., 163 Mo. 376; Dakan v. Chase, 197 Mo. 238; Endger v. Kupper, 110 Mo.App. 288. (4) It was error to refuse plaintiff's instruction number 7. This instruction fairly and concisely states the law. Mowry v. Norman, 204 Mo. 193. The trial court finds no fault with any part of it, yet refused to give it as asked, but added to it fifteen lines, presenting a matter wholly foreign to the subject-matter of the instruction, and which had been given before in instructions for the proponents. (5) Plaintiffs' refused instruction number 1 should have been given. It is in this form: "The court instructs the jury that if you believe from the evidence that the deceased Linebaugh signed the paper in controversy and in evidence without having read the same, and without being fully advised and informed as to the entire contents thereof, then such paper would not be a will, and in such case your verdict should be against the proposed will regardless of any other fact or circumstance in the case." The propriety and necessity of an instruction of this character are abundantly disclosed in the record. It is true the witness Rogers testifies that he read the will to Mr. Linebaugh, paragraph after paragraph, as each one was written, and that when he had finished the writing he again read the whole will to him. On the contrary, Mr. Souers testified that he was there between twenty and thirty minutes before Mr. Wallace came, and Mr. Wallace testified that he was there three or four minutes before Rogers finished the writing. Both of these witnesses testified that during the entire time they were there Rogers was writing on the will, and that when he finished he did not in any manner inform Mr. Linebaugh what he had written during that time. It thus becomes conclusive that when Mr. Linebaugh signed the will he did not know a single word that had been written in it, for at least one-half hour, with Rogers writing industriously all the time. As to the rapidity with which he wrote he testified that he could write and probably did write, the entire attestation clause in three minutes. This attestation clause was shown to have contained six lines and four words. This becomes tremendously important, because at that rate he could write that entire portion of the will that disinherited these plaintiffs. Therefore, if Souer's testimony may be believed, even though Rogers swears it is not true, then the portion of the will affecting the plaintiffs was not read to deceased before he signed it; he was not told what had been written and it is admitted that he didn't read it himself. Carlson v. Lafgran, 250 Mo. 527; Bradford v. Blossom, 207 Mo. 177; 40 Cyc. 110. It is true that the authorities hold that where a testator gives directions as to what he wants written in a will, and the writer in fact follows those directions, then it is not necessary that it be read to him after the writing is finished. But that has no application to this case. Rogers testified "He then came to the Burch heirs, and in writing that clause I used the very words that Mr. Linebaugh dictated to me. That whole clause is his dictation and identical words." Now, the clause concerning the Burch heirs is at the very last of the will, and Souers testified that no dictation was done during the last half hour that Rogers wrote, and what was written during that time was not read to Mr. Linebaugh, nor did he read it, and it was not explained to him. This made a question for the jury, which should have been submitted under this refused instruction.

J. W. Peery and Shinebarger, Blagg & Ellison for respondents.

(1) If a plaintiff who appeals has no case under the evidence, then however many errors against him may have been committed by the trial court, the judgment will not be reversed, if that point is raised by the respondent. Trainer v. Mining Co., 243 Mo. 370; Barclay v. Cemetery Ass'n, 153 Mo. 300; Fritz v. Railroad, 243 Mo. 68; Burns v. City, 131 Mo. 378; State ex rel. v. Jones, 131 Mo. 204; Von Develd v. Judy, 143 Mo. 367. (2) In the execution of the will every formality of the Statute of Wills was complied with. (3) Contrary to appellants' assertion, the provisions of the will in the circumstances revealed by the record, are neither unnatural nor unreasonable, nor unusual; and in the absence of other evidence of undue influence exerted male fide, its discriminations will not be considered as any evidence whatever of such influence. Hayes v. Hayes, 242...

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2 cases
  • Dawes v. Starrett
    • United States
    • Missouri Supreme Court
    • April 17, 1935
    ... ... Ry. Co., 220 ... Mo.App. 518, 276 S.W. 1030; Allamong v. People, 75 ... Mo.App. 276; Zumwalt v. C. & A., 266 S.W. 717; ... Andrew v. Linebaugh, 260 Mo. 623, 169 S.W. 145; ... Harris v. Railroad, 172 Mo.App. 268, 157 S.W. 893; ... Stewart v. Sonneborn, 98 U.S. 187; Brant ... ...
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