Doherty v. Gilmore

• Decision Date: 15 December 1896
• Citation: 37 S.W. 1127,136 Mo. 414
• Parties: Doherty et al. v. Gilmore et al., Appellants
• Court: Missouri Supreme Court

37 S.W. 1127

136 Mo. 414

Doherty et al. v. Gilmore et al., Appellants

Supreme Court of Missouri, First Division

December 15, 1896

Appeal from DeKalb Circuit Court. -- Hon. W. S. Herndon, Judge.

Reversed and remanded.

Harwood & Hubbell for appellants.

(1) The court committed reversible errors in giving to the jury instructions numbered 1, 5, 6, and 8 on the part of the plaintiffs, because there was no evidence of Joseph D Gilmore having exercised undue influence over the mind of the testator. McFadin v. Catron, 120 Mo. 252; Maddox v. Maddox, 114 Mo. 35; Norton v. Paxton, 110 Mo. 456; Thompson v. Ish, 99 Mo. 160; Jackson v Hardin, 83 Mo. 175; Brinkman v. Rueggesick, 71 Mo. 553; Spoonmore v. Cables, 66 Mo. 579; Alexander v. Harrison, 38 Mo. 258. (2) For the same reason the trial court erred in refusing the first instruction prayed by defendants. Mays v. Mays, 114 Mo. 536. (3) The court committed reversible error in giving instruction numbered 3 on the part of the plaintiffs, because it told the jury, in effect, that in order to constitute a valid will the testator must have been able to make a reasonable disposition of his property. Couch v Gentry, 113 Mo. 248; Benoist v. Murrin, 58 Mo. 307.

Casteel & Haynes for respondents.

(1) There was ample evidence to submit the case to the jury on the question of undue influence. McClintock v. Curd, 32 Mo. 411; Harvey v. Sullens, 46 Mo. 147; Myers v. Hauger, 98 Mo. 433; Thompson v. Ish, 99 Mo. 160; McFadin v. Catron, 120 Mo. 252; 1 Jarman on Wills, 132; 1 Redf. on Wills, 516; 1 Redf. on Wills, 537. (2) If there was any evidence tending to prove undue influence, or from which the jury might reasonably infer the same, the case was properly submitted to the jury. Wilson v. Board, 63 Mo. 137; Cook v. Railroad, 63 Mo. 397; Buesching v. Gaslight, 73 Mo. 219; Kelly v. Railroad, 70 Mo. 604; Groll v. Tower, 85 Mo. 249; Noeninger v. Vogt, 88 Mo. 589; Gardner v. Crenshaw, 122 Mo. 79. (3) The instructions as a series should be taken together, and if as a whole they are correct and consistent, their meaning is to be collected from the whole context, and not from detached instructions or phrases in them, and if, when so treated, their meaning is obvious, the legal principles enunciated correct and applicable to the case, they are safe guides for a jury, even though subject to verbal criticism. State v. Matthews, 98 Mo. 125; Reilly v. Railroad, 94 Mo. 600; Harrington v. Sedalia, 98 Mo. 583; Karl v. Railroad, 55 Mo. 476; Mayor v. Burns, 114 Mo. 426.

Division One: Robinson, J. Macfarlane, J., concurs; Brace, C. J., and Barclay, J., dissent. In Banc: Gantt, Sherwood, Macfarlane, and Burgess, JJ., concurring with Robinson, J. Brace, C. J., and Barclay, J., dissenting.

OPINION

In Banc.

Robinson J.

This is a suit to set aside the will of William T. Doherty, founded upon a petition in two counts; the first alleging want of testamentary capacity, the second alleging undue influence exercised over the mind of the testator by one Joseph D. Gilmore, a grandnephew, who, together with a brother and sister, was the recipient of the greater portion of the testator's estate.

The case was tried by a jury who under instructions from the court found in favor of plaintiff, which results in the setting aside of the will.

Several errors are assigned by appellants as grounds for reversing the judgment rendered therein, but in the disposition which we will make of this appeal only one will be noticed.

At the close of the testimony, defendants asked the court to instruct the jury "that there was no evidence of undue influence as in law would invalidate the writing propounded as the last will of the testator Doherty as alleged in the second count of plaintiffs' petition."

Defendants' instruction was refused and the following instructions on that issue, in behalf of plaintiffs, over the objections of defendants, as if to emphasize the error complained of, were then given by the trial court:

"First. The court instructs the jury that you are to pass upon two questions in this case; First, whether or not Wm. T. Doherty, deceased, at the time of the execution of the paper writing offered in evidence as his will, possessed sufficient testamentary capacity to make a will; and, second, whether the paper writing, offered in evidence as the will of Wm. T. Doherty, was the result of undue influence used upon the said William T. Doherty in procuring the execution of said paper writing. If you find from the evidence, either that Wm. T. Doherty, at the time of the execution of said paper writing, did not have sufficient testamentary capacity to make a will, or if said paper writing was the result of undue influence, then you will find your verdict against the will and in favor of the plaintiffs, although you may believe from the evidence that he signed it as such and the witnesses attested it as such."

"Fifth. The court instructs the jury that if you find from the evidence that the testator Wm. T. Doherty was an old man of weak, disordered intellect, and that his mind was so impaired and weakened from any cause as to subject him to the dominion, control, or influence of Joseph D. Gilmore, and the jury find from the evidence that he exercised such influence and control over the mind of said Wm. T. Doherty in his disposition of his property, so as to destroy his liberty and free will and cause it to be made to suit his wishes, and not the wishes of the testator, this is such an influence as will invalidate the will, and your verdict should be against the will."

"Sixth. If the jury find from the evidence that the mind of the deceased Wm. T. Doherty, either from sickness, disease, age, bodily and mental decay, or overweaning confidence, was subject to the dominion and control of his grandnephew Joseph D. Gilmore, and that he exercised such power and influence over his mind and will in the disposition of his property by said will, as to destroy his liberty and free agency to cause such disposition of his property to be made as to suit the purposes and wishes of defendant Joseph D. Gilmore and not his own, then said will in law is not the will of said Wm. T. Doherty, and the jury will find the issue submitted to them for the plaintiffs and against the will."

"Eighth. The court instructs the jury that any statements the said Wm. T. Doherty may have made to his neighbors or others about his domestic affairs will not be considered by you for the purpose of determining their truth, but only for the purpose of determining his mental condition; and the court instructs the jury, that in determining whether undue influence was used to procure the execution of the paper writing offered as the will of Wm. T. Doherty, they will take into consideration his mental and physical condition at the time of the execution of it, and any statements he may have made, the will itself, and the provisions therein. The court further instructs the jury that direct evidence is not required to establish either mental unsoundness or undue influence, and that you may find both, or either, from the facts and circumstances in the case, including the will itself and its provisions, if in your opinion all the facts and circumstances taken together justify such finding."

I have examined the facts of the case with care, and have been unable to find a word or syllable of legal evidence upon which a verdict of undue influence could be predicated, and think that reversible error was committed by the trial court,...