McFadin v. Catron

• Decision Date: 13 February 1894
• Citation: 25 S.W. 506,120 Mo. 252
• Parties: McFadin v. Catron et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 506

120 Mo. 252

McFadin v. Catron et al., Appellants

Supreme Court of Missouri, Second Division

February 13, 1894

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Reversed and remanded.

John E Burden and Boyd & Murrell for appellant.

(1) "The rule that the proof of contradictory statements goes to the credibility of the witness does not extend so far as to introduce previous expressed opinions of the witness." 1 Thompson on Trials, sec. 493. Such evidence is hearsay and immaterial. Harper v. Railroad, 47 Mo. 567; Bank v. Overall, 16 Mo.App. 510; Cable v. McDaniel, 33 Mo. 363; Dunn v. Altman, 50 Mo.App. 231; Holmes v. Anderson, 18 Barb. 420. (2) The trial court erred in granting instruction number 8, asked by the respondent, as to the proof necessary to the factum of the will. "It is settled beyond doubt that the due execution of a will may be established by other evidence than such as may be derived from the subscribing witnesses." Rugg v. Rugg, 21 Hun, 385; Norton v Norton, 2 Redf. 13; Jauncy v. Thorne, 2 Barb ch. 40; Peebles v. Case, 2 Brad. 240. (3) The trial court committed error in granting instruction number 10, asked by the respondent, going to the credibility of the witnesses. "This court has never held that such an instruction should always be given under all circumstances. Such an instruction is always calculated to intimate that in the opinion of the court trying the case some of the witnesses had testified falsely." White v. Maxcy, 64 Mo. 559; Shenuit v. Brueggestradt, 8 Mo.App. 47; Bank v. Murdock, 62 Mo. 74; State v. Palmer, 88 Mo. 572. (4) The trial court erred in admitting in evidence, over the objections of appellant, the deposition of John Catron as to the wishes of Minatree Catron, and the verbal promises of Martha Catron to divide the property devised her by said Minatree Catron between her children according to his wishes, and the verbal declarations of Martha Catron that she intended to carry out her husband's wishes. (5) The trial court committed error, to the prejudice of the appellant, in admitting evidence as to the financial circumstances of the appellant and respondent and of respondent's husband, John McFadin, and their manner of living, and as to the amount of property the appellant had given his children, and in permitting the deeds made to and by the appellant, dated about 1853-1857, to be read in evidence to the jury. Grimm v. Tittman, 113 Mo. 57. (6) The trial court committed error in granting instructions numbers 2 and 6, requested by the respondent, wherein the jury are told to consider the condition in life of the parties and their financial conditions in life. Grimm v. Tittman, 113 Mo. 66; Couch v. Gentry, 113 Mo. 248. (7) The trial court committed error in granting instruction number 6, asked by the respondent, wherein the jury are told that the defendants were required to explain the inequality in the will. "Inequality in the disposition of the testator's property does not cast the burden on the favored devisees to explain the unnatural and unequal provisions in the absence of any testimony showing undue influence." Maddox v. Maddox, 114 Mo. 35; In re Gleespin's Will, 26 N.J.Eq. 523; Kitchen v. Beach, 35 N.J.Eq. 446; Wheeler v. Whipple, 44 N.J.Eq. 141. (8) The court erred in admitting in evidence the testimony of Mrs. McFadin as to her husband's statements to the respondent, made in her presence. Holman v. Bachus, 73 Mo. 49; Moore v. Wingate, 53 Mo. 399. (9) There is not a scintilla of evidence in this case tending to prove that the testatrix had not testamentary capacity. The whole evidence is the other way, and this question ought not to have been submitted to the jury. Brinkman v. Rueggesick, 71 Mo. 553; Couch v. Gentry, 113 Mo. 248. (10) The trial court committed error in admitting in evidence the opinions of the physicians as to the mind, cancer and ailments of the testatrix, and in refusing to permit the proponent to cross-examine Dr. Alexander. (11) The trial court erred in granting instruction number 6, asked by the respondent, by which the burden is cast upon the proponent to explain the inequality in the will. In the absence of undue influence exerted in procuring the will, the burden of explaining or accounting for the inequality in the will is not cast upon the proponent. Maddox v. Maddox, 114 Mo. 35; Wheeler v. Whipple, 44 N.J.Eq. 141; Turnure v. Turnure, 35 N.J.Eq. 437. (12) The court below committed error in admitting in evidence the statements of Tom Catron, witness for respondent, as to James Henry Catron sending him to purchase a coffin for testatrix, "cheap for cash," and as to the sale of the cemetery lot. The only purpose and office of this immaterial evidence was to prejudice the jury against the proponent. Garrett v. Greenwell, 92 Mo. 125; Winkley v. Foye, 66 Am. Dec. 715. (13) The court below committed error in admitting evidence of the deathbed declarations of the testatrix. These declarations did not tend to show the condition of the testatrix's affections or mind, were connected with nothing, were not competent on the point of undue influence; they, therefore, supported no issue before the jury. Kitchen v. Beach, 35 N.J.Eq. 446; Boyland v. Meeker, 4 Dutch. 274; Spoonemore v. Cables, 66 Mo. 579; Gibson v. Gibson, 24 Mo. 227. (14) The verdict was the result of prejudice engendered by the immaterial, irrelevant and incompetent testimony admitted by the court. Where the verdict is the result of prejudice it will be set aside. Winkley v. Foye, 66 Am. Dec. 715; Spohn v. Railroad, 87 Mo. 84; Garrett v. Greenwell, 92 Mo. 125; Whitsett v. Ransom, 79 Mo. 258. (15) This court should not only reverse this case and not remand it, but it should enter up judgment that the paper dated June 2, 1890, propounded as the last will and testament of Martha Catron, is the last will and testament of Martha Catron, deceased. R. S. 1889, sec. 2304; Jackson v. Hardin, 83 Mo. 187; Carroll v. Company, 107 Mo. 654.

J. D. Shewalter and Wallace & Childs for respondent.

(1) A sound and disposing mind and memory is the ability to know that the party is disposing of property by will, the general nature and character of the property, and what disposition is being made thereof, and to recall those dependent on the bounty of the testator. Brinkman v. Rueggesick, 71 Mo. 556; Young v. Ridenbaugh, 67 Mo. 574; Jackson v. Hardin, 83 Mo. 175; Thompson v Ish, 99 Mo. 160. (2) Undue influence are acts or conduct which forces or controls the will of the person executing the paper and causes them to execute it, not according to their own, but another's, desires; in other words, it is the destruction of free agency. Jackson v. Hardin, 83 Mo. 175; Sunderland v. Hood, 84 Mo. 293; Rankin v. Rankin, 61 Mo. 295; Brinkman v. Rueggesick, 71 Mo. 553. (3) A proceeding under the statute to contest the validity of a will is in the nature of an action at law, and the appellate court will not set aside a verdict in such a proceeding on the grounds that it is against the weight of the evidence. There must be an entire absence of evidence on either issue. Bush v. Bush, 87 Mo. 480; Young v. Ridenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314. (4) And where the law has been declared with substantial accuracy, the verdict will not be disturbed for slight errors, when, taken as a whole, the instructions given present the law of the case fairly. McClintock v. Curd, 32 Mo. 422; Mullen v. Hospital Ass'n, 73 Mo. 242. (5) It is always competent to impeach a witness by showing he has made out of court statements as to material facts different from those made as a witness, his attention first being called to the time, place and persons present. (6) It is not proper to single out and comment on certain parts of the evidence by the instructions. (7) In a proceeding to establish a will in solemn form, the due execution of the will must be shown with the same formalities as in the probate court. The proceeding is in the nature of an appeal from the probate court, and the trial is de novo, though the will has been admitted to probate. Benoist v. Murin, 48 Mo. 48; Harris v. Hays, 53 Mo. 90; Lamb v. Helm, 56 Mo. 420. (8) All witnesses may be impeached by contradictory statements as to material facts out of court, their attention first being called to the time, place and persons present; and that an instruction as to the credibility of witnesses should except attesting or other witnesses, is sustained by no authority. (9) The declarations of the testatrix as to the disposition of her property, are competent as showing her affections and state of mind at the time; the weight to be given thereto, depending upon the time of utterance. Gibson v. Gibson, 24 Mo. 227; Tingley v. Cowgill, 48 Mo. 291; Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 160; Schouler on Wills, sec. 242; Glover v. Hayden, 4 Cush. (Mass.) 580. (10) Evidence of declarations of Mrs. Catron were competent, and the conversations and arrangements with her husband were competent, for the reasons and authorities supra. (11) The jury should be placed as near as possible in the place of the testator, and the financial condition of those dependent on her bounty is a proper subject of inquiry. Young v. Ridenbaugh, 67 Mo. 574; Thompson v. Ish, 99 Mo. 160. (12) Gross inequality, or practically disinheriting one child (and she poor) and giving a large estate to another (already rich) without apparent cause, raises the presumption of undue influence. Gay v. Gillilan, 92 Mo. 264; Harvey v. Sullens, 46 Mo. 152; Harrel v. Harrel, 62 Ky. 203. (13) The wife is the real and only party in interest, and she is a competent witness to a conversation she had with defendant, even though her husband was present and took part therein. Henry v. Sneed, 99 Mo. 407. (14) Testamentary...