Gordon, By Next Friend v. Burris

• Decision Date: 07 December 1897
• Parties: Gordon, by Next Friend, Appellant, v. Burris et al
• Court: Missouri Supreme Court

43 S.W. 642

141 Mo. 602

Gordon, by Next Friend, Appellant, v. Burris et al

Supreme Court of Missouri, First Division

December 7, 1897

Appeal from Livingston Circuit Court. -- Hon. Joshua Alexander Special Judge.

Reversed and remanded.

Scott J. Miller, with whom are L. H. Waters and F. S. Miller, for appellant.

(1) The testatrix, at the time of making the pretended will, had not capacity to make a will. Benoist v. Murrin, 58 Mo 307; Young v. Ridenbaugh, 67 Mo. 574; Harvey v Sullens, 56 Mo. 372. (2) The court erred in taking the case, by mandatory instruction, from the jury. There was evidence sufficient to establish the allegations in the petition, and the case should have gone to the jury. Buesching v. St. Louis Gaslight Company, 73 Mo. 231; Frick v. Railroad, 75 Mo. 600; Bush v. Bush, 87 Mo. 486; Covey v. Railroad, 86 Mo. 642; Gregory v. Chambers, 78 Mo. 298. (3) In this case the fiduciary relation existed. It devolved upon the defendants to prove the absolute fairness and want of undue influence and fraud over the mind of the testatrix in obtaining the paper writing. The court erred in placing the burden on the contestant. Robins v. Hope, 57 Cal. 497; 1 Story, Eq., sec. 218; Anderson's Law Dic. 459; Gay v. Gillilan, 92 Mo. 251; Carl v. Gabel, 120 Mo. 298. (4) If the evidence offered conduced in any reasonable degree to establish the probability or improbability of the facts in controversy, it should have gone to the jury. Rice on Ev. 480; Hart v. Newland, 3 Hawks, 122; Trull v. True, 33 Me. 367; Hagerty v. Andrews, 94 N.Y. 195; Turner v. Baker et al., 64 Mo. 245. (5) The record is replete with evidence sustaining the charge of undue influence, and the case should have been submitted to the jury. Schouler on Wills, sec. 227; Garvin v. Williams, 44 Mo. 465; Harvey v. Sullens, 56 Mo. 372; Street v. Goss, 62 Mo. 226; Ford v. Hennessy, 70 Mo. 580; Muller v. St. Louis Hospital Ass'n, 73 Mo. 242; Bridwell v. Swank, 84 Mo. 455. (6) The evidence is sufficient to establish the charge of fraud made in the petition; that fraud is distinct from undue influence; that fraud was practiced on the testatrix; that the testatrix was induced, fraudulently, to make the purported will, and the court erred in not permitting the cause to go to the jury on this issue. Norton v. Paxton, 110 Mo. 467; 1 Bigelow on Fraud, 571, sec. 5, title, "Wills;" Beach on Wills, sec. 107; Davis v. Calvert, 5 Gil. & J. 269, 301; Stewart v. Elliott, 2 Mackey, 307; Perry v. Buffington, 11 Ga. 343. (7) The defendants, having filed an amended answer denying the execution of the will, should not have been permitted to withdraw the same after the jury had been sworn. The court should have framed an issue to have been tried by the jury. Tingley v. Cowgill, 48 Mo. 291; Harvey v. Sullens, 56 Mo. 373. (8) The contestant was not mentioned in the purported will. Lucy May Gordon is not her name. R. S. 1889, sec. 8877.

Sheetz, Davis and Wait for respondent.

(1) No declaration to destroy the will is competent. Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Haynes, 24 Mo. 237; Spoonemore v. Cables, 66 Mo. 579; Rule v. Maupin, 84 Mo. 587; Doherty v. Gilmore, 136 Mo. 414. (2) Fraud or undue influence must be a part of the res gestae and continue at time of making the will. Pratte v. Coffman, 33 Mo. 71; Garvin v. Williams, 44 Mo. 478; McFadin v. Catron, 120 Mo. 252. (3) The mere fact of unjust discrimination in its provision does not shift the burden of establishing its validity on defendant. McFadin v. Catron, 120 Mo. 252. Nor is the mere existence of an improper or undue influence operating, but not exercised by the person possessing it, upon the mind of the testatrix when she makes the will, sufficient fraud for invalidating it. (4) Undue influence is over-persuasion or force. Sunderland v. Hood, 84 Mo. 293; Jackson v. Hardin, 83 Mo. 175; Myers v. Hauger, 98 Mo. 439; Richmonds Appeal, 21 Am. St. 94, and notes. (5) The only question in this case is mental capacity, and we rely on Judge Broaddus' and Dr. Freeman's evidence in the case. (6) Contestants can not take nonsuit. It is in the nature of an appeal. Benoist v. Murrin, 48 Mo. 48; Jackson v. Hardin, 83 Mo. 185; Hughes v. Burriss, 85 Mo. 665; McMahon v. McMahon, 100 Mo. 97. (7) To dismiss the case is erroneous, and this court, on appeal, should have rendered final judgment. Jackson v. Hardin, 83 Mo. 184; R. S. 1889, sec. 2068. Therefore, this court should have ordered final judgment for proponent under section 2068, Revised Statutes 1889. (8) There is no evidence of undue influence. Doherty v. Gilmore, 136 Mo. 414. (9) There is no petition in this case, and any order of the court taking it from the jury is proper. General charge of fraud is no charge, and defendant's objection should have been sustained to any evidence. Hoester v. Sammelmann, 101 Mo. 619.

OPINION

Macfarlane, J.

This is a statutory suit contesting the will of Lucinda Burris, deceased. The petition charges in substance that on and prior to March 20, 1890, John Burris and Lucinda Burris were husband and wife. That there was born of the marriage three sons, Augustus, George, and Frederick, and one daughter, Josephine. That the daughter married Liston Gordon in 1878, by whom she had one child, plaintiff Mary Josephine Gordon, and died in 1885.

That on the twentieth day of March, 1890, the said Lucinda Burris executed and had witnessed a paper writing by which she devised to her three sons in equal parts all her estate, consisting of two hundred and forty acres of land, worth about $ 30 per acre, which was made subject to $ 30, which she bequeathed to Lucy May Gordon. The said Lucinda died on the thirty-first of March, 1890, the said three sons and plaintiff, her granddaughter, surviving her. The will was in due time probated in common form by the probate court of the county. The three sons, devisees under the writing, are made defendants. The petition charges that "said defendants by fraud, art, and deceit and undue influence, over-persuaded and induced the said Lucinda Burris to make the pretended will," whereby the said plaintiff was virtually disinherited. The answer admits the probate of the will, and avers that the paper writing is the last will and testament of the said Lucinda Burris, and denies all other allegations.

The answer charges as a special plea that plaintiff had previously prosecuted a suit against the same parties contesting the same will. That after certain proceedings in said court plaintiff took a nonsuit. That thereupon defendants filed a motion for judgment establishing the will. That said motion had never been disposed of, but was still pending and was a bar to this suit.

The reply was a general denial of new matter.

By agreement the case was tried before J. W. Alexander, Esq., as special judge.

To sustain the will defendants examined as witnesses Judge E. J. Broaddus and Dr. Freeman, who were the subscribing witnesses. These witnesses both testified that the said Lucinda Burris signed the paper writing as her last will, that she was of sound mind, and that they subscribed their names as witnesses in her presence. After this formal proof the will was read in evidence.

Plaintiff, to sustain the charge of her petition, offered evidence tending to prove that testatrix at the time of her death was over seventy years old; that she had suffered from la grippe, followed immediately by an attack of pneumonia, from which she was convalescing when the will was made, though she was still confined to her bed and was physically very feeble. While suffering from pneumonia she was exposed to the measles, and she, her family and her physician, believed that in her condition she could not survive an attack of that disease. In these circumstances the will was made on March 2, 1890. In a few days thereafter she took the measles, from which she died on the thirty-first day of the same month.

The evidence tended to prove also that testatrix regarded plaintiff, her grandchild, with affection. The evidence does not show the age of the defendants or whether they lived in the family of the testatrix or not. It may be inferred, however, that they were mature men; one of them had studied medicine, and acted as agent for his mother in renting her land. We can fairly infer, also, that they either lived in the house or near by at the time the will was made. One of them was sick at the time and occupied a room in the house, and the others appeared to have been about the house much of the time.

There was evidence tending to prove that during the sickness of Mrs. Burrus, and before her death, defendants insisted that she should make her will and give them the property. A witness testified that she heard defendants in the room with their mother talking "about having her make the will; they thought it ought to be done, they said." They said that they ought to have the property. Their father went in at this time and says "Mother is sick, don't bother her now." Cora Glore, who was a servant in the family, testified that testatrix told her, after the will had been made, that "they coaxed her to make the will -- told her she might die and she had better have a will . . . . She said they did not want her to will little May anything. She called her little May." The witness testified that when she spoke of little May she cried. Mrs. Wilkison testified that one of the boys, Fred, had studied medicine, and waited on his mother and administered medicine to her.

The record shows the following evidence of Judge Broaddus who wrote the will and was one of the subscribing witnesses "Before I left, after I had written the will and it had been signed, the old lady said: 'Now, Mr. Burris, you know you agreed to provide for Mary (whatever her name was) and now is the time...