Defoe v. Defoe
| Decision Date | 08 June 1898 |
| Citation | 46 S.W. 433,144 Mo. 458 |
| Parties | Defoe et al. v. Defoe et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Gasconade Circuit Court. -- Hon. Rudolph Hirzel, Judge.
Reversed and remanded (with directions).
D. C Taylor and John W. Booth for appellants.
(1) The burden of proof to establish undue influence is on the party holding the affirmative of that issue. Dougherty v Gilmore, 136 Mo. 414; Berberet v. Berberet, 131 Mo. 399; McFadin v. Catron, 120 Mo. 252; Ib. 138 Mo 197; Carl v. Gabel, 120 Mo. 283; Maddox v. Maddox, 114 Mo. 35; Jackson v. Hardin, 83 Mo. 175; Jones v. Roberts, 37 Mo.App. 174. (2) It is error to give instructions calling for a verdict on an hypothesis which there is no evidence to support. See cases cited to point one. In this case there was no evidence of undue influence. Hence the court erred in giving instructions requiring the jury to find against the will if they believed from the evidence that it was procured by undue influence. (3) In the contest of a will, declarations of the testator are received in evidence only as external manifestations of the mental condition of the testator and of the state of his affections, and not as evidence of the truth of facts stated. Dougherty v. Gilmore, 136 Mo. 414; McFadin v. Catron, 120 Mo. 252; Ib. 138 Mo. 197; Rule v. Maupin, 84 Mo. 587. (4) Undue influence to vitiate a will must result in a bequest in favor of a party exercising it. Jarman on Wills [2 Am. Ed.], ch. 3, par. 36. (5) There is no evidence of undue influence in the case; on the contrary, on all the evidence the will is the free will of the testator; and a reasonable result of his just perceptions of good morals, propriety and duty acting naturally upon his affections. Jackson v. Hardin, 83 Mo. 175; Berberet v. Berberet, 113 Mo. 399; McFadin v. Catron, 138 Mo. 197; Cash v. Lust, 44 S.W. 724.
Z. J. Mitchell, F. W. Brooks and R. H. Stevens for respondents.
(1) Undue influence may be inferred from facts and circumstances proven in the case, and it was not error in giving instruction 9 at the instance of plaintiffs. Carl v. Gabel, 120 Mo. 283; Woodberry v. Woodberry, 141 Mass. 329; Myers v. Hauger, 98 Mo. 437. (2) The court did not err in giving instruction relating to engendering and using the prejudices of Levi C. Defoe against drinking, getting drunk and gambling. Even if it is true that William F. Defoe was a frequenter of saloons and a drunkard and gambler, the defendants ought not to have made these faults of their half brother a matter of discussion with their father, knowing it only caused him, being an invalid, to worry and become prejudiced against his son, but as a matter of fact it is not true that after the twenty-first of December, 1891, date of the second will of Levi C. Defoe, that William F. Defoe ever gambled or speculated in wheat, and it is not true that he was ever a frequenter of saloons or a drunkard in any sense of the word, and there is not one particle of testimony to show that those things are true, yet the testimony shows that this was a matter of frequent discussion between Mr. Defoe, his wife and his daughters and son-in-law. This being so and the will having been made by Mr. Defoe beyond doubt from his belief that William F. Defoe was a gambler and drunkard or frequenter of saloons and being made greatly in the interests of Mrs. Defoe and her children, the jury had a right to infer Mr. Defoe got his ideas and belief that Frank was drinking hard or a frequenter of saloons and a gambler from Mrs. Defoe and her codefendants in his frequent discussions with them about Frank and his "recklessness." (3) The question of will or no will is for the jury, and where the law of the case has been declared with substantial accuracy, the verdict will not be disturbed by the appellate court. Elliott v. Welby, 13 Mo.App. 19; Mullers v. St. Louis Hospital Ass'n, 73 Mo. 242.
This is a proceeding under the statute, instituted by the respondent, William Frank Defoe, and Walter and Singleton Buford, minors, by their next friend John B. Buford, to contest and set aside the will of Levi C. Defoe, the father of William Frank Defoe and the grandfather of the two minor plaintiffs. The petition as filed alleged two grounds for contest, first, mental incapacity of the testator, and, second, undue influence exercised over his mind by the defendant while in that condition, to procure the making and signing of said instrument. Appellants by their answer allege the instrument to be the will of said Levi C. Defoe, executed with sound and disposing mind and memory, and deny the allegations of undue influence. On the trial appellant made due proof of the execution of the will and of the testamentary capacity of the deceased Levi C. Defoe, and then read the will and rested. Respondents offered their testimony and rested, and in open court formally elected to and did abandon their claim of want of testamentary capacity of the testator, and elected to stand on the issue of undue influence.
Why the trial court did not force respondents to an abandonment of both issues at the close of all the testimony by a peremptory instruction, we are at a loss to understand, and are still more perplexed in the endeavor to conjecture upon what theory the jury could have predicated their finding.
We are not unmindful, in saying that this case should have been disposed of by the trial court, of the special right and province of the jury to consider, determine and judge of the facts, and of the importance in preserving that right from judicial intrenchment; but when the testimony is of such a character that no issue, on the question of the exercise of undue influence on the part of the defendants or any of them over the mind of the testator, is or could legitimately be said to have been made, the jury have no right under the pretense of the consideration of the facts of the case, to defeat a will that has been made by one confessedly competent to dispose of his property, merely because that disposition was not after the notion or fancy of the jury, or because, perchance, the jury did not approve of or indorse some of the social prejudice of the testator which with him were shown to be quite strong and aggressive.
From the testimony it appears that the only member of the Defoe family to whom the testator ever spoke on the subject of a will was the plaintiff in this action, Frank Defoe, and to him only once, and then regarding a former will that had been made, and that testimony comes from Frank Defoe, and when considered in the light of all the surrounding facts confirms rather than otherwise, the present will, if it could be said to need confirmation. Eliminate from this case the great amount of testimony showing the strong and bitter prejudice the testator had against saloons, saloon-frequenting, drinking and gambling in all its...
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