19 S.W. 807 (Mo. 1892), Norton v. Paxton

Citation:19 S.W. 807, 110 Mo. 456
Opinion Judge:Black, J.
Party Name:Norton et al., Appellants, v. Paxton et al
Attorney:William A. Wood for appellants. J. F. Harwood, also, for appellants. Crosby Johnson for respondents.
Case Date:June 06, 1892
Court:Supreme Court of Missouri
 
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Page 807

19 S.W. 807 (Mo. 1892)

110 Mo. 456

Norton et al., Appellants,

v.

Paxton et al

Supreme Court of Missouri, First Division

June 6, 1892

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....

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