25 S.W. 214 (Mo. 1894), Carl v. Gabel

Citation:25 S.W. 214, 120 Mo. 283
Opinion Judge:Brace, J.
Party Name:Carl et al. v. Gabel, Appellant
Attorney:L. H. Waters for appellant. J. W. Wofford and Morton Jourdan for respondents.
Judge Panel:Brace, J. Barclay, J., absent.
Case Date:February 19, 1894
Court:Supreme Court of Missouri

Page 214

25 S.W. 214 (Mo. 1894)

120 Mo. 283

Carl et al.


Gabel, Appellant

Supreme Court of Missouri, First Division

February 19, 1894

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed and remanded.

L. H. Waters for appellant.

(1) Undue influence can not be inferred because the testatrix was old and feeble in mind and body nor because she made an unreasonable will. Maddox v. Maddox, 21 S.W. 502; Myers v. Hauger, 98 Mo. 438; Eckert v. Flowry, 43 Pa. St. 52. (2) The fact that defendant, at the request of testatrix called in an attorney to write the will, and at the attorney's request got two of his neighbors to go to his house to witness the will justifies no inference of undue influence. Stirling v. Stirling, 64 Md. 138. (3) The presence of defendant's wife was not objectionable. It is not charged that defendant's wife used any undue influence. The undue influence is limited to defendant. Jackson v. Hardin, 93 Mo. 186. (4) The fact that testatrix was at defendant's house and the recipient of his kindness furnishes no evidence of undue influence. Aid Society v. Lorridge, 70 N.Y. 387; Kerr v. Lumsford, 31 W.Va. 659; Rutherford v. Morris, 77 Ill. 397; Allmon v. Pigg, 82 Ill. 149; Higgins v. Carlton, 28 Md. 115; Gardner v. Gardner, 34 N.Y. 155; Glover v. Hayden, 4 Cush. 580. (5) It would be a great reproach to the law if it should deprive age and infirmity of the kindly ministrations of affection or of the power of rewarding those who bestow them. Maddox v. Maddox, 21 S.W. 502; Elliott's Will, 2 J. J. Marsh. 340; Rankin v. Rankin, 61 Mo. 295. (6) The influence denounced by the law must be such as amounts to over persuasion, coercion or force destroying the free agency of the testatrix. Jackson v. Hardin, 83 Mo. 185; Rankin v. Rankin, 61 Mo. 295; Norton v. Paxton, 110 Mo. 456. (7) It must appear that the circumstances attending the execution of the will are inconsistent with any reasonable hypothesis but undue influence. Brick v. Brick, 66 N.Y. 144; Eckert v. Flowry, 43 Pa. St. 46; McIntire v. McCoun, 28 Iowa 480; Barnes v. Barnes, 66 Me. 286; Aid Society v. Lorridge, 70 N.Y. 387; Rabb v. Graham, 43 Ind. 1; Shailer v. Burnstead, 99 Mass. 112. (8) The court erred in giving plaintiffs' second, third, fourth and fifth instructions. Jones v. Jones, 57 Mo. 138; Chouteau v. Iron Works, 83 Mo. 73; Maddox v. Maddox, 21 S.W. 502; Myers v. Hauger, 98 Mo. 438. (9) The court erred in refusing defendant's first, second, fourth and tenth instructions. First. The burden of proof as to the allegation of undue influence was on the plaintiffs and the first instruction should have been given. Davis v. Davis, 123 Mass. 590; Baldwin v. Parker, 99 Mass. 79. Second. There was no allegation in the petition that Mrs. Williams did not have sufficient capacity to make a will and that was not an issue in the case. Bidwell v. Swank, 84 Mo. 471; Harris v. Hays, 53 Mo. 90; Stirling v. Stirling, 64 Md. 138.

J. W. Wofford and Morton Jourdan for respondents.

(1) Our first point is, that when plaintiffs proved that Mrs. Williams had willed her property to a stranger in blood, and had virtually disinherited her only living blood relative, that this state of facts casts the burden upon Mr. Gabel to show the will to be the voluntary free act of the testatrix. Harvey v. Sullens, 46 Mo. 147; Idem, 56 Mo. 372; Gay v. Gillilan, 92 Mo. 250; Thompson v. Ish, 99 Mo. 160; Redfield on Wills [3 Ed.], pp. 31, 32, 33, and note 4 at foot of page 33; Idem, secs. 37, 39, p. 527; Comstock v. Hodlyme, 8 Conn. 254; Woods' Ex'r v. Devers, 19 S.W. 1; Foster v. Dearborn, 51 N.W. 614; Heinman v. Heard, 62 N.Y. 448; Rice on Ev., secs. 75, 76, 81-84; 16 Am. St. Rep., 437, note at page 437 and note on page 439, and authorities cited on page 440; Scott v. Hull, 8 Conn. 303; Knox's Appeal, 26 Conn. 22; Weed's Appeal, 35 Conn. 455; Layman's Will, 42 N.W. 286; Elder v. Oliver, 30 Mo.App. 576; Cravens v. Falconer, 28 Mo. 19; Hammond v. Dike, 42 Minn. 273; Dinges v. Brownson, 14 W.Va. 103; In re Blakely's Will, 48 Wis. 294-301; Wilbur v. Wilbur, 27 N.E. 701. (2) The court was right in the addition it made to defendant's instruction number 8, as set forth in his motion for a new trial in his fifth ground. Thompson v. Ish, 99 Mo. 171; Bush v. Bush, 87 Mo. 485, 486; Tingley v. Cowgill, 48 Mo. 297; Gibson v. Gibson, 24 Mo. 227; Rule v. Maupin, 84 Mo. 587; Jones v. Roberts, 37 Mo.App. 181. (3) An unnatural disposition of property is a strong circumstance in determining the question of undue influence. In re Mitchell's Estate, 44 N.W. 885; Hammond v. Dike, 42 Minn. 273. (4) Facts constituting undue influence: Grove v. Spiker, 20 A. 144; O'Neil v. O'Neil, 14 N.W. 59; Hanna v. Wilcox, 5 N.W. 717; Watkins v. Brant, 1 N.W. 82; Lyons v. Campbell, 7 S. Rep. 250. (5) On contest of will for undue influence, evidence of testatrix's feelings, as shown by her declarations is competent. Campbell v. Canahan, 13 S.W. 1098; Gardner v. Frieze, 19 A. 113.

Brace, J. Barclay, J., absent.


[120 Mo. 286] Brace, J.

This is a statutory proceeding instituted in the circuit court of Jackson county, to contest the validity of the will of Pauline Williams theretofore duly admitted to probate in the probate court of said [120 Mo. 287] county in the month of November, 1888, whereby she devised and bequeathed all her estate to the plaintiff, Headwig Harder Carl, her granddaughter and only heir at law, and to the defendant, William Gabel. The property consisted of a lot in Kansas City and personal property of the value of about $ 1,500. By the will she bequeathed all her personal property to the defendant Gabel, who was made executor thereof, and directed that the lot be sold, and the proceeds equally divided between him and her granddaughter.

The substance of the petition is that the said Pauline Williams at the time of the execution of the instrument was old, feeble in mind and body, and that the same is not the will of said Pauline, but of the said defendant Gabel, by whose over-persuasion and undue influence it was procured to be made.

It appears from the evidence that at the time of the execution of the will Mrs. Williams was about seventy-three years of age; that the will was executed on the fifth, and that she died on the fourteenth of November, 1888; that she had been twice married; that she had one child by her first husband, Mrs. Theresa Hoeder, the plaintiff's mother, who died on the sixth day of August, 1888; that she had no children by her second husband, Henry Williams, who died on the twenty-eighth of October, 1888, aged about seventy years, intestate, the owner of all the property bequeathed in the will, leaving...

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