Norton v. Paxton
| Decision Date | 06 June 1892 |
| Parties | Norton et al., Appellants, v. Paxton et al |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court.
Affirmed.
William A. Wood for appellants.
(1) The testator having been shown by the evidence to be under the influence of devisees, the burden of proof as to capacity of said testator to make a valid will was shifted, and it rested upon those claiming under the will to prove by a preponderance of the evidence that the testator, at the time of making the will, had sufficient mental capacity to do so. It was, therefore, error for the court to give defendants' instruction, numbered 3, which violates this doctrine. Gay v. Gillilan, 92 Mo. 262; Garvin's Adm'r v. Williams, 44 Mo. 478; Harvey v. Sullens, 46 Mo. 147. (2) The court erred in giving the sixth instruction on the part of defendants which took from the jury the question of undue influence. The provisions of the will, the oral evidence, and the circumstances surrounding Dr. Norton at the time he attempted to make a will, all go to prove that the defendants had gained and exercised an undue influence over his mind to the exclusion of his natural heirs. "A slight circumstance may furnish a sufficient legal warrant for an inference against the will, and if the jury draw such an inference it is fatal to the will." The evidence in the case at bar discloses circumstances not slight, but strong, to warrant the inference of undue influence by defendants over the testator, and the court committed error in taking them from the jury's consideration. Mueller v. Hospital Ass'n, 5 Mo.App. 390; Elliott v. Welby, 13 Mo.App. 19; Harney v. Sullens, 46 Mo. 146.
J. F Harwood, also, for appellants.
(1) The burden of proving the execution of the will and sufficient mental capacity of the testator is on the defendants. Cravens v. Faulconer, 28 Mo. 19; Elliott v Welby, 13 Mo.App. 19. Because of this burden the defendants are given the opening and closing in the argument to the jury. Tingley v. Cowgill, 48 Mo. 291; Benoist v. Murrin, 58 Mo. 321. The third instruction violates this principle, in that it shifts the burden of proof upon the contestants, and in giving it the court committed error. (2) The fourth instruction given on the part of the defendants is clearly inconsistent with the fourth instruction given on the part of the plaintiffs, which properly declares the law. Young v. Ridenbaugh, 67 Mo. 574. (3) The fifth instruction given on the part of the defendants is in conflict with the fourth instruction given on the part of the plaintiffs. (4) The court erred in giving the sixth instruction on the part of the defendants which took from the jury all consideration of the question of undue influence. There was evidence of undue influence in the provisions of the will as well as in the oral testimony, and the circumstances surrounding Dr. Norton at the time he made the will. Mueller v. St. Louis Hospital, 5 Mo.App. 390; Elliott v. Welby, 13 Mo.App. 19; Harvey v. Sullens, 46 Mo. 146. And it was improper for the court to exclude these facts. (5) It was an error for the court to give the seventh and eighth instructions on the part of defendants. The seventh instruction tells the jury that the only issue in the case is whether the writing produced on the trial was the last will. In other words, was it the last attempt of Dr. Norton to make a will?
Crosby Johnson for respondents.
(1) After formal proof of the will by calling the attesting witnesses, the burden of proof shifted to the plaintiffs to show the imbecility of the testator. Harris v. Hayes, 53 Mo. 90; Jackson v. Hardin, 83 Mo. 175; 1 Redfield on Wills [3 Ed.] pp. 31, 32, par. 4; 2 Jarman on Wills [Perkins' Ed.] p. 72; 3 Greenleaf's Evidence, sec. 689. (2) The contents of former wills were admissible for purpose of showing a fixed purpose at a time when there was no question about the competency of Dr. Norton to make a valid will. Thompson v. Ish, 99 Mo. 160. (3) The will being made in conformity to a fixed design, as evidenced by former wills and declarations, is the strongest evidence of capacity. Couch v. Couch, 7 Ala. 519; 32 Am. Dec. 602. (4) Relatives of a dead man have no equity to have a valid will set aside on mere sentimental grounds. Jackson v. Hardin, supra. (5) The undue influence which will invalidate a will must be such as amounts to overpersuasion, coercion or force, destroying the free agency and will power of the testator. Jackson v. Hardin, supra; Fee v. Taylor, 83 Ky. 259; Pendlay v. Eaton, 130 Ill. 69; Wilbur v. Wilbur, 129 Ill. 392.
This is a statutory proceeding to contest the will of Dr. Pryor N. Norton of Hamilton, Caldwell county. The plaintiffs are a brother, two sisters and a nephew of the deceased. Other brothers and sisters, nephews and nieces are made defendants; but the real defendants are Irene K. Paxton and Alice C. Bourse, who are the sisters of the deceased wife of the testator. He had no children.
The will now in question bears date the tenth of March, 1888, and the testator died of a lingering consumption on the twenty-second of the following April, leaving an estate consisting of real and personal property, valued at about $ 8,000. Aside from two small legacies, he devised all of his property to Irene K. Paxton and Alice C. Bourse, to have and hold free from the marital rights of their then or future husbands. The substantial averments of the petition are that Dr. Norton, by reason of the weak condition of his body and mind, caused by disease and drugs administered to him, was not of a sound and disposing mind, and that the will was the result of the fraud and undue influence of the principal devisees.
The defendants produced the will and proved its execution, and that the testator was of sound mind by the three subscribing witnesses. Plaintiffs produced their evidence, and the defendants introduced a vast number of witnesses in rebuttal.
The third instruction given at the request of the defendants asserts the proposition that the law presumes that every man of mature age possesses the capacity to make a will, until the contrary is made to appear, and concludes with these words: "And the burden of proof is upon those who are disputing the validity of the will to show that Norton, at the very time of executing the will, had not the capacity to make a valid will, and, unless they have, by a preponderance of the testimony in the case, shown that Dr. Norton, at the time he made the will in dispute, was of unsound mind or did not have the capacity to make a valid will, then the finding of the jury must be that he had sufficient capacity."
The second, given at the request of the contestants, declares, among other things: "Unless the jury find from the evidence that said deceased, at the time of the signing and acknowledgment of said paper writing, was possessed of a sound, disposing mind and memory, they must find the issues of fact for the plaintiffs."
By the sixth instruction, given at the request of the defendants, the court told the jury that there was no evidence tending to show undue influence exerted by the proponents of the will, and excluded that issue from their consideration.
The jury found the issues in favor of the proponents, and the case is here on the contestants' appeal.
1. The second instruction given at the request of the contestants is so framed as to direct a verdict for them, unless it appeared from all the evidence that deceased possessed a disposing mind, while the one given for defendants cast the burden upon the contestants to show want of testamentary capacity. They are plainly conflicting, and one of them should have been refused.
Much has been said in the books concerning the burden of proof in these will cases. Under our law the proceeding to contest a probated will is in the nature of an appeal and a trial de novo. There can be no doubt but it devolves upon those who claim under the will to show that it was duly executed and attested, and that the testator was of the requisite age. Cravens v. Faulconer, 28 Mo. 19; Tingley v. Cowgill, 48 Mo. 291.
In Harris v. Hays, 53 Mo. 90, it was said the proper course is for the proponents of the will to introduce the subscribing witnesses, and establish by them the execution of the will and the sanity of the testator. This makes out a prima facie case, and the burden of establishing incompetency or undue influence rests then on the contestants. In the case of Benoist v. Murrin, 58 Mo. 307, the contestants admitted the genuineness of the signatures of the testator and the witnesses, but did not admit the sanity of the testator. This court denied to contestants the right to open and close, and in clear and unqualified terms held that it devolved upon those claiming under the will to establish the sanity of the testator. It also held that this burden was not shifted during the trial by proof of the factum of the will and testamentary competency by the attesting witnesses, but remained with the party setting up the will. Jackson v. Hardin, 83 Mo. 175, is cited as asserting a different rule, but we do not so understand that case.
It is sufficient for those who claim under the will to make out a prima facie case in the first instance. There is a presumption that every adult person is compos mentis, but the presumption is one of fact only. It may be that the production of a will, reasonable on its face, with proof of due execution and attestation, and that the testator was of full age, will make out a prima facie case on the part of the proponents, thus giving full force to the presumption, though the usual course is to offer some evidence of mental capacity. The parties claiming under the will having made out a prima facie case, the...
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