Gay v. Gillilan

Citation5 S.W. 7,92 Mo. 250
PartiesGay et al., Appellants, v. Gillilan et al
Decision Date20 June 1887
CourtUnited States State Supreme Court of Missouri

Appeal from Daviess Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Reversed.

H. C McDougal for appellants.

(1) The court erred in admitting parol evidence of the contents of former wills. Rankin v. Rankin, 61 Mo. 295. (2) The court below erred in giving defendants' instructions and particularly the first, which attempts to define sufficient mental capacity and what it takes to constitute undue influence, and by what proof these should be established. Harvey v. Sullens, 46 Mo. 147. When Gillilan's influence was shown in connection with the fact that he got the bulk of the estate, then the burden of proof shifted and it devolved upon him to show affirmatively the circumstances connected with the drawing of the will, that his father was under no misapprehension, and that the bequests and devises to him were the free and intelligent act of the father. Wilson's Appeal, 99 Pa. St. 545; Harvey v. Sullens supra; Riddle v. Johnson's Ex'r, 23 Gratt 152; Evans v. Arnold, 52 Ga. 169. (3) The inspection by the jury of the signature to the will during the closing argument for defendants, and the comments of counsel upon the character and peculiarities of said signature, as tending to prove that the testator was of sound mind, and sober, and not under undue influence when it was executed, was error. Sheaff v. Gray, 2 Yeag. 273; Jennings v. Warne, Lea's Rep. 116; Watson v. Walker, 3 Fost. 471; Flanders v. Davis, 19 N.H. 139; Whitney v. Whitman, 5 Mass. 405; Walker v. Hunter, 17 Ga. 364; Railroad v. Butler, 57 Pa. St. 335; Hodge v. Bennington, 43 Vt. 450. As it cannot be told what weight the jury gave to the illegal evidence, the case must be reversed. State v. McCannon, 51 Mo. 160; Golson v. Ebert, 52 Mo. 260; Sheffill v. VanDusen, 81 Mass. 485. The introduction of the signature to the will and the comments thereon in the closing argument of defendants' counsel, was such an abuse of the privileges of counsel as to demand the interference of this court. Brown v. Swineford, 44 Wis. 282; Tucker v. Henniker, 41 N.H. 317; State v. Smith, 75 N.C. 306; Ferguson v. Smith, 49 Ind. 33; Hennies v. Vogel, 66 Ill. 401.

Prosser Ray also for appellants.

The first instruction given for defendants is erroneous. (1) It, in effect, requires contestants to show the existence of undue influence beyond a reasonable doubt, and, therefore, exacts a degree of strict proof not demanded in a civil suit. Better v. Saathoff, 98 Ill. 269; Crabtree v. Reed, 50 Ill. 206; McDud v. McDud, 67 Ill. 550; Ruff v. Jarrett, 94 Ill. 476; Stratton v. Railroad, 95 Ill. 26; Clark v. Kitchen, 52 Mo. 316; Firman v. Smith, 7 Lans. 443. (2) It improperly defines undue influence and lays unauthorized stress on the words force and coercion. Boyd v. Boyd, 66 Pa. St. 293; 1 Redf. on Wills, 528; Hall v. Hall, 1 P. & M. 481; Darley v. Darley, 3 Brad. 508. (3) It confines the inquiry to the circumstances of the execution of the will in question. Taylor v. Wilbrun, 20 Mo. 307; Boyse v. Rossborough, 6 H. & L. 51; Davis v. Calvert, 5 G. & J. [Md.] 302. (4) Upon the issue of mental capacity, and in respect to those affected by the will, it limits the knowledge of the testator to those provided for therein, whereas it should have also embraced similar knowledge as to those thereby excluded from substantial participation in the property. Williams Ex. [6 Am. Ed.] 57; 3 Moore P. C. C. 290; Forman v. Smith, 7 Lans. 443; Reynolds v. Root, 62 Barb. 250; St. Leger's Appeal, 34 Conn. 434; Beaubien v. Cicotte, 12 Mich. 460; Davis v. Calvin, 5 Gill & Johns. [Md.] 300; Kinne v. Johnson, 60 Barb. 69. (5) Under the facts and circumstances of the case, it improperly put the burden of proof upon the contestants as to the issue of undue influence. Cadwallader v. West, 48 Mo. 483; 2 Pomeroy's Eq., sec. 591; Long v. Mulford, 17 Ohio St. 484; Woods v. Downs, 18 Ves. 119; 1 Redf. on Wills, 510, 514; Lynch v. Clements, 24 N. J. 431; 2 Lead. Cases in Eq., pt. 2, pp. 1275-76; Hanel v. Hanel, 1 Duvall [Ky.] 203; Bates v. Bates, 27 Ia. 116; Higgins v. Carter, 28 Md. 115. Where a son is so placed by events and circumstances that he may reasonably be supposed to have a controlling influence with the testator, is it unreasonable to require him to show, if the will is made in his favor, and inequitable and unjust to others, according to the common instincts of mankind, that he did not prompt or bring about such a result, which, in normal and natural testamentary disposition, would not have occurred? In such cases it is not necessary to prove in the first instance the actual exercise of overpowering influence aliunde the will with its bounty in his favor. Highberger v. Stifler, 21 Md. 339; Sears v. Shafler, 2 Seld. 268; Marvin v. Marvin, 3 Ab. Ap. [N. Y.] 193; Kinne v. Johnson, 60 Barb. 69; Moore v. Blauvet, 2 McCarty, 367; Long v. Musferd, 17 O. S. 484; Boyd v. Boyd, 66 Pa. St. 293; Kennedy v. Kennedy, 2 Ala. 571; Conant, Adm'r, v. Jack, 16 Ver. 336.

Rush & Alexander for respondents.

(1) The court did not err in allowing proof of contents of former wills. Miller v. St. Louis, 73 Mo. 242; Thornton v. Thornton, 39 Vt. 122; 1 Jarman on Wills [5 Am. Ed.] 139; Harris v. Hays, 53 Mo. 95; Thomas v. Stump, 62 Mo. 275; Wooten v. Redd, 12 Grattan, 196; Williamson v. Nabers, 14 Ga. 286; 1 Redfield on Wills [2 Ed.] 536-7-51, 54, 55; Hughes v. Hughes, 31 Ala. 319; Means v. Means, 5 Strobh. 167; Love v. Johnston, 12 Iredell, 355; Dye v. Young, 55 Iowa 433; Couch v. Couch, 42 Am. Dec. 602. (2) The first instruction given for defendants was proper. 1 Redfield on Law of Wills [2 Ed.] 509 to 536; Williams v. Gonde, 1 Hagg. 577; Gardner v. Gardner, 34 N.Y. 155; Gaither v. Gaither, 20 Ga. 709; Children's Aid Soc. v. Loveridge, 70 N.Y. 387; Brick v. Brick, 66 N.Y. 144; Eckert v. Flowry, 43 Pa. St. 46; McIntire v. McConn, 28 Iowa 480; Barnes v. Barnes, 66 Me. 286; Turner v. Cheeseman, 2 McCart. 243; Taylor v. Kelly, 31 Ala. 59; McDaniel v. Crosby, 19 Ark. 533; Sutton v. Sutton, 5 Harr. [Del.] 459; Whitman v. Stoddard, 3 Bradf. 393; Roe v. Taylor, 45 Ill. 485; Rutherford v. Morriss, 77 Ill. 397; Higgins v. Carlton, 28 Md. 115; Robb v. Taylor, 43 Ind. 1. "In order to set aside the will of a person of sound mind it is not enough to show that the circumstances attending the execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis." Whepley v. Loder, 1 Demorest [N. Y.] 368; 1 U. S. Dig. 1883, p. 857, c. 5; Tyler v. Gardiner, 35 N.Y. 610 and cases cited. The burden of proving undue influence in this case was properly declared by the court to be upon the plaintiffs. Gardner v. Gardner, 34 N.Y. 163; Glover v. Hayden, 4 Cush. 580; Taylor v. Wilburn, 20 Mo. 306; Ewen v. Perrin, 5 Redf. [N. Y.] 640; Tyler v. Tyler, 35 N.Y. 559; Ball v. Parker, 99 Mass. 79; Webber v. Sullivan, 58 Iowa 160; Davis v. Davis, 123 Mass. 590; Jarman on Wills [5 Am. Ed.] 133-136-142; Rankin v. Rankin, 61 Mo. 295. (3) When the will was read in evidence to the jury, it became a part of the record and any legitimate argument that might be drawn from it was entirely proper. In this case the will was the subject of controversy, and every provision in it was subject to scrutiny and comment. It would be difficult for counsel to determine what his privileges are in the argument of a case if the use made of the will in this instance was improper. It is just as competent for counsel to comment on the appearance of the will, as to comment on the appearance of a witness on the stand, and his manner of testifying. If the remarks of counsel were unwarranted by the evidence, and misleading, the court say, in the case of Roeder v. Studd, 12 Mo.App. 566, it is the duty of the trial court to reprimand him in the presence of the jury. They further say that the question of misconduct of counsel cannot be saved for review in an appellate court by affidavits accompanying the motion for a new trial. To same effect, see Blackman v. Cowan, 11 Mo.App. 588; State v. Banks, 10 Mo.App. 115. This court has ever been slow to interfere with verdicts, even when counsel have gone outside the record in their closing speeches. State v. Lee, 66 Mo. 165; Lloyd v. Railroad, 53 Mo. 515. (4) It would not have been error for the court to have permitted the jury to take the will with them to their room. Hauger v. Imboden, 12 Mo. 88; Cornelius v. Grant, 8 Mo. 60.

OPINION

Sherwood, J.

This suit is a statutory proceeding to determine whether the instrument executed January 13, 1882, was the last will of Nathan Gillilan, deceased. He died December 17, 1882. Plaintiffs claim that it was made under undue influence, obtained and exercised by his son George, one of the defendants, and the principal beneficiary, by threats of taking his father's life. Other grounds were alleged in the petition, that the testator was not possessed of sufficient testamentary capacity to make a will, and was intoxicated when he signed the instrument in question. The testimony exhibits a considerable degree of conflict as to whether the testator was intoxicated when the will was made; as to the condition of his mind at that time, and as to whether there was undue influence exerted in securing the execution of the will.

Objections are taken to the first instruction given on behalf of the proponents of the will; it is as follows:

"The jury are instructed that the only issue in this case is whether or not the instrument in writing, offered in evidence, is the last will and testament of Nathan Gillilan deceased. And if they find, from the evidence, that he signed in the manner testified by the subscribing witnesses, and at the time of...

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