Cash v. Lust

• Decision Date: 23 February 1898
• Citation: 44 S.W. 724,142 Mo. 630
• Parties: Cash et al. v. Lust et al., Appellants
• Court: Missouri Supreme Court

44 S.W. 724

142 Mo. 630

Cash et al. v. Lust et al., Appellants

Supreme Court of Missouri, First Division

February 23, 1898 ^[*]

Appeal from Pike Circuit Court. -- Hon. Reuben F. Roy, Judge.

Reversed (with directions).

J. H Blair & Son and D. A. Ball for appellants.

(1) The court should have required plaintiff to give security for costs. R. S. 1889, sec. 3916; McMahon v. McMahon, 100 Mo. 97; Jackson v. Hardin, 83 Mo. 176. (2) The court erred in refusing to give instruction number 2, asked by defendants. There was absolutely no evidence of mental unsoundness. Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Norton v Paxton, 110 Mo. 456; McFadin v. Catron, 120 Mo 252; 138 Mo. 197. (3) The court erred in refusing to give instruction number 3, asked by the defendant. There was no evidence of undue influence. Doherty v. Gilmore, 35 S.W. 1130; Doherty v. Gilmore, 37 S.W. 1127; Maddox v. Maddox, 21 S.W. 499; Norton v. Paxton, 110 Mo. 456; McFadin v. Catron, 120 Mo. 252 and 138 Mo. 197. (4) The court erred in refusing to give instruction number 5, asked by the defendants. The declarations of the testator were not competent evidence on the question of undue influence. Doherty v. Gilmore, 37 S.W. 1127; Jones v. Roberts, 37 Mo.App. 164; Bush v. Bush, 87 Mo. 480; Spoonemore v. Cables, 66 Mo. 579; Gibson v. Gibson, 24 Mo. 227. (5) Instruction number 1, given by the court on its own motion, was erroneous. It by implication told the jury that all the declarations made by John C. Lust were evidence of the facts concerning which they were made, except his declarations giving his reasons for disinheriting the plaintiff. It commented on the evidence. Meyer Bros. Drug Co. v. McMahan, 50 Mo.App. 18; Benjamin v. Railroad, 50 Mo.App. 602; Doud v. Reid, 53 Mo.App. 553; Railroad v. Stoyed Co., 120 Mo. 541. (6) The court did not properly reprimand plaintiff's counsel, J. D. Hostetter, for making an unauthorized statement in his argument to the jury. State v. Fisher, 124 Mo. 460; State v. Young, 99 Mo. 666; State v. Jackson, 95 Mo. 623; Carder v. Primm, 64 Mo.App. 92.

Hostetter & Jones and Clark & Dempsey for respondents.

(1) There is nothing in appellant's complaint about the action of the trial court permitting the case to be heard without requiring plaintiffs to give security for the costs. It was a discretionary matter for the court in any event, and when plaintiffs admitted that they would be unable to comply with the rule to give security, if made, then it would be useless for the court to indulge in a meaningless formality of making an order which it knew beforehand the parties were unable to comply with, and which it had no power to enforce. It could not refuse to hear plaintiffs' evidence and only hear one side of the case. That would certainly be against public policy and might result in establishing a will which, had all the evidence tendered been heard, could have been clearly shown not to be the will of the deceased. Neither could the case be dismissed, as the authorities are to the effect that when a will contest is once put on foot, it is the duty of the court to hear the evidence and either reject or establish the will regardless of the wish or effort of any of the parties to dismiss the proceedings. This proposition appellants concede to be correct. Our courts have decided in divorce cases when a defendant has failed to comply with the order of the court as to payment of alimony, he is neither in contempt nor can the court strike out his answer for such failure or refuse to hear pertinent evidence tendered by him. McMakin v. McMakin, 68 Mo.App. 57. Besides, one of the plaintiffs was suing by a guardian and curator, and it has never been the policy of the law to require security for costs in such instances. R. S. 1889, sec. 2249. The very case cited by appellants, McMahon v. McMahon, 100 Mo. 57, directly militates against their contention. (2) We submit that there was ample evidence on both the issues of mental incapacity and undue influence to support the finding below, as a careful reading of respondents' statement, which can be verified by the record, will show. Appellate courts will not interfere even though they may believe the finding of the jury to be against the weight of the evidence. Young v. Ridenbaugh, 67 Mo. 574; Garland v. Smith, 127 Mo. 567. (3) Even conceding that said refused instruction number 5 states a correct proposition of law, yet the effect which the jury should give to the declarations of the testator is clearly and correctly set out in instruction number 1 given by the court of its own motion wherein the jury are told not to consider declarations made by the testator as to his reasons for disinheriting plaintiff as evidence of the truth of the facts in regard to which they are made, as they are not competent evidence for such purposes, but the declarations may be taken into consideration in determining the condition of the mind and affection of said John C. Lust at the time said will was signed. No declarations of the alleged testator were given in evidence by respondents save those giving reasons why he was disinheriting the plaintiff, Irene Cash. (4) We contend that sufficient showing of confidential and trust relations have been made between Chris and Sam on the one side and their father, the alleged testator of the other, whereby they come under the well recognized rule that the onus is cast upon them to prove that they did not exert an undue or unfair influence to procure the making of the will, there being a presumption raised against them when the trust or confidential relationship is once proven to exist, but the trial court, in giving defendant's instruction number 1, placed the burden of proving the existence of undue influence on the plaintiffs, and it might be fairly contended erred in defendants' favor in so doing. There was also the unreasonable and unexplained action of the testator in disinheriting Harry Liter, his grandson, which would also require these sons to show clean hands. Gay v. Gilliland, 92 Mo. 250, which has been approvingly cited in all the latest cases by this court.

OPINION

Macfarlane, J.

This is a suit contesting the will of John C. Lust, deceased. It is prosecuted by Irene M. Cash, a daughter of deceased, and her husband, Paul Cash, and Harry Liter, a grandson of deceased, by his guardian, against nine defendants, sons and daughters of deceased.

The invalidity of the will is sought to be established on two grounds: first, mental incompetency of the testator; and second, that it was made through the undue influence of defendants Christian G. Lust and Samuel Lust. The answer admits the due execution of the will, denies the other allegations of the petition, and states that the paper writing is the last will of the deceased.

On the trial defendants made proof of due execution and attestation of the will, and offered evidence that the testator, at the time of executing it, was of sound mind, and read the will in evidence. By item 1 deceased directs the payment of his debts. Item 2: His widow is given the home farm and household and kitchen furniture for life. Item 3: Plaintiff Irene Cash is given the sum of $ 150. Item 4: Plaintiff Harry Liter is given $ 100. Item 5: The balance of his property is divided equally among his other nine children, the defendants herein. Item 6: At the death of his wife the property given her for life is to be divided among the defendants. Christian G. Lust is named as executor.

Evidence bearing upon the mental condition of deceased and of the influence said defendants Christian and Samuel Lust had over him, was then offered by the parties. The evidence will be stated in the opinion. At the close of all the evidence defendants asked, and the court refused to give, the following instructions:

"1. The court instructs the jury that under the evidence in the cause their verdict must be for the defendants.

"2. The court instructs the jury that there is no evidence of the unsoundness of testator's mind at the time of the execution of the will; therefore as to that issue your verdict must be that the paper read is the will of the deceased, John C. Lust.

"3. The court instructs the jury that there is no evidence in the cause as to undue influence upon the part of Christian G. Lust and Samuel Lust upon the mind of the testator; therefore as to that issue your verdict must be to sustain the will.

"4. The court instructs the jury that there is no evidence that the testator was of unsound mind and for that reason incapacitated to make a will; neither is there any evidence in the cause of undue influence having been made upon the mind of the testator; your verdict must therefore be that the paper read to you in evidence is the last will and testament of John C. Lust."

The issues were submitted upon instructions given by the court. The verdict was that the paper writing was not the will of John C. Lust. Judgment was entered rejecting the will and defendants appealed.

I. At some time before the trial defendants filed a motion asking a rule on plaintiffs to give security for the costs. This the court refused on the ground that security could not be required as a condition to prosecuting a suit contesting a will. Defendants complain of this ruling of the court. The probate of a will in common form by the probate court is, in effect, interlocutory, and only becomes final and conclusive at the expiration of the time parties in interest are allowed in which to contest its validity in the circuit court. When a contest is entered, the circuit court thus acquiring jurisdiction should proceed, as required by statute, to determine whether the paper writing in question is, or is not, the will of the decedent. Contestants will not be allowed to...