21 S.W. 921 (Mo. 1893), Mays v. Mays

Citation:21 S.W. 921, 114 Mo. 536
Opinion Judge:Barclay, J.
Party Name:Mays et al., Appellants, v. Mays et al
Attorney:Edward McCabe and H. J. Drummond for appellants. W. M. Boulware for respondents.
Judge Panel:Barclay, J. Black, C. J., Brace and Macfarlane, JJ., concur.
Case Date:March 13, 1893
Court:Supreme Court of Missouri
 
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Page 921

21 S.W. 921 (Mo. 1893)

114 Mo. 536

Mays et al., Appellants,

v.

Mays et al

Supreme Court of Missouri, First Division

March 13, 1893

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

Affirmed.

Edward McCabe and H. J. Drummond for appellants.

(1) The court erred in permitting the paper writing called the will to be admitted in evidence. The attesting witnesses were not questioned as to the testator's sanity and said nothing on the subject. See Revised Statutes, 1889, sec. 8870; Swift v. Wiley, 1 B. Mon. 114; Senish v. Nason, 22 Me. 441; Reed v. Watson, 27 Ind. 448. (2) When it is required witnesses to attest the signing of a will, it is by implication required of them to attest the capacity of signing. Withinton v. Withinton, 7 Mo. 589; Cravens v. Faulkner, 28 Mo. 22; Appleby v. Brock, 76 Mo. 314. (3) The court erred in instructing that there was no sufficient evidence of undue influence on the part of the testator's wife over his mind. Schouler on Wills, sec. 214; Griffith v. Diffenderfer, 50 Md. 466; Haydock v. Haydock, 33 N.J.Eq. 494; Maris v. Freeman, 3 Redf. 181; Marx v. McGlynn, 88 N.Y. 357. Undue influence sufficient to invalidate a will may be exerted without positive fraud. Stewart v. Elliot, 2 Mackey (D. C.), 307. When a will is impeached for undue influence, the inquiry is not merely whether an undue influence was exercised at the time of the execution of the will, but whether an undue influence had been acquired and operated upon the testator in the disposition of his property. Harvey v. Sullens, 46 Mo. 147; Hughes v. Burris, 85 Mo. 666; Taylor v. Wilburn, 20 Mo. 306. (4) The court erred in permitting the inventory of the estate of John Mays, deceased (the brother who was not permitted to see the testator at the time of executing the paper) to be read in evidence. (5) The court erred in permitting the record of the judgment of the probate court, showing the writing produced to have been there admitted to probate as the will of deceased, to be read in evidence to the jury. Under the law in this state, the proponent takes the initiative and has the opening and the close. The proponent introduced the subscribing witnesses and sought to establish by them the execution of the will and the soundness of mind of the testator. This is necessary to make a prima facie case. Harris v. Hays, 53 Mo. 96; Benoist v. Murrin, 48 Mo. 51. The probate of a will...

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