Maddox v. Maddox

• Decision Date: 06 February 1893
• Citation: 21 S.W. 499,114 Mo. 35
• Parties: Maddox et al., v. Maddox et al., Appellants
• Court: Missouri Supreme Court

21 S.W. 499

114 Mo. 35

Maddox et al., v. Maddox et al., Appellants

Supreme Court of Missouri, First Division

February 6, 1893

Appeal from Marion Circuit Court. -- Hon. Thomas H. Bacon, Judge.

Reversed and remanded.

W. R Anderson and Harrison & Mahan for appellants.

(1) The court erred in the admission of evidence. Rogers v Troost, 51 Mo. 476; State v. Thomas, 99 Mo 257; Myers v. Hauger, 98 Mo. 439. (2) The court should have given proponents' instruction number one. There is nothing in the evidence which even tends to show that Henry or John Maddox exercised any influence over their father in procuring the will. Jackson v. Hardin, 83 Mo. 184; Higgins v. Carlton, 28 Md. 118. (3) There was not a scintilla of evidence showing testator's want of capacity to make the will and the court should so have instructed the jury. 1 Redfield on Wills, p. 124; Brinkman v. Rueggesick, 71 Mo. 556; Myers v. Hauger, 98 Mo. 439; Jackson v. Hardin, 83 Mo. 180; Benoist v. Murrin, 58 Mo. 322; Converse v. Converse, 21 Vt. 168; Harvey v. Sullens, 46 Mo. 153; 1 Jarman on Wills, 38, and note one. (4) The court committed manifest error in the fifteen instructions given of its own motion to the jury. The issues were plain and easily understood and the great number of instructions given were calculated to lead the jury from the real issues. Instruction number eleven does not properly define undue influence. Jackson v. Hardin, 83 Mo. 184; Rankin v. Rankin, 61 Mo. 295. (5) The verdict of the jury was against the law and the evidence. There was no evidence authorizing the jury to find the verdict which they returned. It was the result of passion, prejudice or mistake, and the court should set the same aside, and direct the trial court on the evidence to enter up a judgment for proponents. Hipsley v. Railroad, 88 Mo. 353; Rhodes v. Farish, 16 Mo.App. 437.

W. M. Boulware for respondents.

(1.) The items of evidence specified as objectionable were competent as tending to show the situation, circumstances and relations of the parties and thereby to place the jury as nearly as possible in the position of testator. Thompson v. Ish, 99 Mo. 172. (2) Where the provisions of a will are unreasonably and grossly inconsistent with natural affection and the duties of testator with reference to his property and family, that fact will of itself require the beneficiaries under the will to make some reasonable explanation of the unnatural character of the instrument. In such case the natural inference is the legal inference. That inference is that the will is the product either of an unsound mind or of intervening, controlling influence. Especially is this the case where the testator is old and of impaired powers. Gay v. Gillilan, 92 Mo. 264; 1 Redfield on Wills [2 Ed.] sec. 14, 515; sec. 53, 537; In re Liney's Will, 13 N. Y., Supp. 551; Carroll v. House, Al. Rep. (N. J.) 191; Harnell v. Harnell, 1 Duvall, 203; White v. Bailey, 10 Mich. 155; Mowry v. Silber, 2 Bradf. (N. Y.) 133. (3) The record shows substantial evidence of undue influence and justified the verdict.

Macfarlane J. Barclay, J., not sitting.

OPINION

Macfarlane, J.

This is a statutory contest over the validity of the will of James Maddox, deceased. The will was executed December 7, 1887, and the testator died March 4, 1887, leaving surviving him his wife, four sons -- Henly J., John F., Jesse P. (called Prior), and William Maddox -- one daughter, Matilda, wife of Benjamin D. Morton, and the children of a deceased daughter, a former wife of said Morton.

The will is contested by two sons, Jesse P. and William D. Maddox, on the ground of the want of testamentary capacity of the testator, and the exercise of undue influence by defendants, Henly J. and John F. Maddox. A jury trial resulted in a verdict and judgment against the validity of the will, and defendants appealed.

By his will the testator charged his children with advancements as follows: Henly, $ 2,232.50; John, $ 939.50; Benj. D. Morton, $ 1,231.4 on account of first wife; Matilda Morton, $ 651.50; Jesse P., $ 1092.50. The will then provides that John should be made equal with the advancement made to Henly, and be paid $ 1,000 additional to make up for the time at which it was paid. It directs that $ 1,000 each for William and Jesse be held by the executors in trust to pay them the income during life, and at their death $ 1,000 to be divided between Henly and John "for their trouble and care of Jesse P. and William," and the other $ 1,000 to be paid the children of Morton. After leaving small legacies to the children of said Morton the residue of the estate is devised to Henly J. and John F. in equal parts. The estate passing under the will was valued at about $ 11,000, more than half of it being subject to the life estate of the testator's wife to whom it was devised.

The evidence shows that the testator was about eighty years of age at the time of making the will. That he was in feeble health for a year or two before his death. His right hand was "shaky," he had a large wen on his neck, and suffered from asthma. He was not confined to his house on account of his feeble health when he made his will, but was able to go out, and attended to his own business up to near his death. When the will was written, the writer, Mr. Lafon, who was also one of the witnesses, and F. B. Kellar, the other witness, had before them a book in which an account of the advancements were entered. It seemed to be understood that the testator could not write, and it was not shown in whose handwriting the entries were made.

None of the children were present when the will was written. Testator dictated the will, knew the items of advancements made, and the sum of them. He explained to Mr. Lafon the provisions of the will and the desired disposition of the property, and, as he testified, "especially the way in which he had provided for William and Prior. Said he thought it would be best for them to have only the interest, the principal going to Henly and John for taking care of them; that if he left William and Prior the principal, it would very soon go as the balance he had given them had gone." Both the subscribing witnesses testified that his mind was perfectly clear and sound when he made his will. The two plaintiffs were each over fifty years of age and one of them married. They were both men of feeble intellect, very deaf and nearly, if not quite blind, and were not able to support themselves. Henly and John were farmers, one living within a mile of testator, and the other about three miles away.

At the conclusion of the evidence, the court was asked by defendant to give the jury the following instructions:

"1. The court instructs the jury that there is no evidence sufficient in law to prove, of tending to prove, that the execution of said will by James Maddox was induced by the exercise of undue influence over his mind by either Henly J. Maddox or John F. Maddox.

"2. The court instructs the jury that there is no evidence before them to justify a verdict that at the time the will was executed the said James Maddox was of unsound mind, and did not have sufficient capacity to make the same."

The court in lieu of other instructions asked by the parties gave a series of fifteen instructions which were intended to cover all the issues. By these instructions he told the jury that if "the said James Maddox had sufficient strength and perception of intellect and sufficient memory to know what property he owned, and to know what property he owned and to know the number and names of his children, and to form a determination in his own mind as to what disposition he desired to make of said property, then the jury should find, that then and there the said James Maddox was of sufficiently sound mind to make said alleged will."

A portion of instruction 10 given was as follows:

"And if from all the evidence in the case the jury find that the contested will contained in its disposition gross inequality as against the contestants, with reference to their claims of natural affection, as the children of the testator, with no reason for said inequality suggested either in the alleged will, or otherwise in evidence, and that said inequality, if any, is unreasonably inconsistent with the moral duties of the alleged testator in reference to his property and family, then said inequality, if any, will require from the proponents the further proof of some reasonable explanation of such character of said alleged will, before the issue of all alleged undue influence can be found in favor of said will, unless in such event the proponents have shown by the greater weight of evidence to the reasonable satisfaction of the jury that said will was not the product of undue influence."

I. Inquiry was made of several witnesses as to what labor the plaintiffs did on the farm of the testator years before, and they were permitted to answer against the objection of defendants. The evidence of Boon Christy will sufficiently illustrate the point. He testified: "I knew James Maddox since 1860, lived near his home, from 1860 to 1865. Prior and William Maddox lived on his (testator's) farm." "Q. What were they doing?" This question was objected to by defendants' counsel as being irrelevant and immaterial to the issues, because the time is fixed between 1860 and 1865. The objection was overruled and witness answered: "They were farm hands there on the farm and doing the work of regular farm hands." The witness was examined on no other question.

We are unable to see what this evidence had to do with the questions of testamentary capacity of the testator, or the influence of the defendants over him twenty-five years afterwards. It threw no light on the subject whatever. Plaintiffs insist that,...