21 S.W. 499 (Mo. 1893), Maddox v. Maddox

Citation:21 S.W. 499, 114 Mo. 35
Opinion Judge:Macfarlane, J.
Party Name:Maddox et al., v. Maddox et al., Appellants
Attorney:W. R. Anderson and Harrison & Mahan for appellants. W. M. Boulware for respondents.
Judge Panel:Macfarlane, J. Barclay, J., not sitting.
Case Date:February 06, 1893
Court:Supreme Court of Missouri
 
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Page 499

21 S.W. 499 (Mo. 1893)

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

[114 Mo. 37] Macfarlane, J.

This is a statutory contest over the validity of the will of James Maddox, deceased. [114 Mo. 38] 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 [114 Mo. 39] 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

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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...

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