Elizabeth Garvin's Adm'r v. Williams

• Decision Date: 31 March 1872
• Citation: 50 Mo. 206
• Parties: ELIZABETH GARVIN'S ADMINISTRATOR et al., Appellants, v. JOHN P. WILLIAMS et al., Respondents.
• Court: Missouri Supreme Court

50 Mo. 206

ELIZABETH GARVIN'S ADMINISTRATOR et al., Appellants,

v.JOHN P. WILLIAMS et al., Respondents.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Glover & Shepley, and Harris, with Crews Letcher & Laurie, for appellants.

I. There is no evidence to support the verdict, and it must not stand. (Spicely v. True, 14 Ind. 437; McDaniel v. Parks, 19 Ark. 671; Hicks v. Maness, id. 701; Peoria Bridge v. Loomis, 20 Ill. 235; Beal v. Cunningham, 42 Me. 362; Pool v. Huff, 20 Ga. 671; Miller v. Ratliff, 14 Ark. 419; Hunnewell v. Hobart, 40 Me. 28; Hall v. Wight, 9 Rich., Law, 392; Mattox v. Bryan, 19 Ga. 157; Eveleth v. Harmon, 33 Me. 275; Derwort v. Loomer, 21 Conn. 245; Zeigler v. Scott, 10 Ga. 389; Baker v. Stone, 36 Mo. 338; State v. Burnside, 37 Mo. 343; Alexander v. Harrison, 38 Mo. 238; Nelson v. Boland, 37 Mo. 432; Heyneman v. Garneau, 33 Mo. 565; Morris v. Barnes, 35 Mo. 412; Atkyns v. Nicholson, 31 Mo. 488; Webster College v. Tyler, 35 Mo. 268; Hart v. Leavenworth, 11 Mo. 629; Williams v. Brassfield, 9 Yerg. 270; Linton v. Schwab, 32 Verm. 612; 3 Gra. & Waterm. New Trials, 1184; 21 Conn. 245; 40 Me. 28; 2 Monr. 76; 66 Penn. St. 22; 64 Penn. St. 205; 3 Com. Bench, 150; Malachi v. Dickey, 6 Mo. 185; Hill v. Deaver, 7 Mo. 57; Boylan v. Meek, 4 Dutch. 476; 16 Mo. 317; 8 Mo. 437; Gra. & Waterm. New Trials, 1176-92; Harrison v. Cachelin, 23 Mo. 124; Burns v. Hayden, 24 Mo. 215; 45 Mo. 305; 3 Kans. 499.)

II. The testimony of a portion of the beneficiaries in the will, to acquit themselves of the charge of practicing fraud and undue influence on the mind of Petticrew to procure the will, was, under the statute (Wagn. Stat. 1872, § 1), incompetent, and was properly rejected. For what is this action brought? The petition says the defendants, on September 14, 1860, and prior thereto, did use fraud and undue influence over the mind of W. D. Petticrew, and so did induce him to make the will. If this allegation is true, the action will prevail; if it is not true, the action will fall. Petticrew was the victim of the fraud and undue influence--was one original party to the cause of the action. The defendants, as the fraudulent procurers of the will, were the other parties to the cause of action. Petticrew is dead, and the conclusion is inevitable that they cannot be witnesses. If the fraud and undue influence charged upon the defendants is not the cause of action in this suit, what is the cause of action? The will itself is not the cause of action. That Petticrew made a will, is not complained of at all. He had a right to make a will. The complaint is that the defendants used fraud and undue influence upon him to procure from him a will he never made--to cheat and deceive him into an act he otherwise would not have done. It is perfectly plain to our minds that the fraud and undue influence is the cause of action, and that the defendants on one side and Petticrew on the other were the original parties to it. If this is not so, who were the original parties to the cause of action now on trial and in issue, and what was that cause of action? It may be said that no action would lie to set aside the will until the death of Petticrew. That is true. The action is one thing, the cause of the action is another. There may be a cause of action, and yet no action ever be commenced. The fraud and undue influence which induced Petticrew to make the will in this case took place prior to his death. They constituted the wrong done to Petticrew, but the action which is based on them was in abeyance until after his death. If a man be induced to deliver an escrow by fraud, said escrow to become his conveyance on a future event, and he dies, and the escrow is delivered after his death, the case will be like that at bar. No action would lie while there was no conveyance, but it will not be denied that an action would lie to cancel the deed when it has taken effect, for the fraud in procuring the escrow. This court has decided that “while the testator was living, the will in this case was ambulatory, but the principle was of no consequence when he was induced to make and publish it in view of impending death, and no opportunity of reconsideration was open to him. It would be strange indeed of any distinction was made and the doctrine did not apply to wills.” (Garvin v. Williams, 44 Mo. 477.) If, then, there is no difference in the rules of dealing with fraud in procuring a will and fraud in procuring a deed, the rule of evidence should be the same.

Under the New York law similar to ours a party to the record, charged with undue influence in procuring a will, was held incompetent as a witness to show the validity of the will, because a party to the transaction. (Timon v. Claffy, 45 Barb. 438; Dyer v. Dyer, 48 Barb. 190; Van Alstyne v. Van Alstyne, 28 N. Y. 375; Stephens v. Hartley, 13 Ohio, 531; Hollister v. Young, 41 Verm. 159; Little v. Little, 13 Gray, 256; Looker v. Davis, 47 Mo. 140; State ex rel. Townsend v. Meagher, 44 Mo. 356; Smith v. Smith, 1 Allen, 184; Fisher v. Morse, 9 Gray, 440; Ela, Ex'r, v. Edwards, 97 Mass. 318; Granger et al. v. Bassett, 98 Mass. 468; Shailer v. Bumstead, 99 Mass. 130; Garvin v. Williams, 45 Mo. 477.)

III. When fiduciary relation existed and a gift has been made, and the parties were so situated that undue influence could have been used, the law presumes that it was, and the donee must prove that he did not create the donor's intention to give, and the gift was not the result of undue influence or fraud. (Bergen v. Udell, 31 Barb. 9; White v. Mead, 2 Irish Eq. 420; Huguenin v. Basely, 14 Ves. 273; Houghton v. Houghton, 11 Eng. Law & Eq. 138; Irish v. Smith, 8 Serg. & R. 519; Berdoe v. Dawson, 34 Beav. 603.) The donee must prove he did not produce the intention to make the gift, or it cannot stand. (Billage v. Southee, 9 Hare, 540; Taylor v. Wilburn, 20 Mo. 306.) It must appear that before the execution of the will no undue influence had been used to procure it.

IV. The presumption of fraud and undue influence must be repelled beyond a reasonable doubt. (Goodard v. Carlisle, 9 Price, 184; Meek v. Perry, 36 Miss. 190; Davis v. Davis, 4 Giff. 419; 13 Beav. 241; Wright v. Proud, 13 Ves. 139; Vreeland v. McClelland, 1 Bradf. Sur. 432; Whelan v. Whelan, 3 Cow. 576; Breed v. Pratt, 18 Pick. 117; Grosvenor v. Sherrat, 28 Beav. 665; 34 N. Y. 167; Tyler v. Gardner, 35 N. Y. 595-6; Whelan v. Whelan, 3 Cow. 384; Darley v. Darley, 3 Brady, 490.)

Sharp & Broadhead, for respondents.

I. This court has repeatedly declared that it will not interfere with the verdicts of juries, where there is a question as to the weight of evidence. (Irwin v. Riddlesburger, 29 Mo. 341; McMurray v. Taylor, 30 Mo. 262; State v. Burnside, 37 Mo. 346; Markle v. Langner, 46 Mo. 393; King v. Moon et al., 42 Mo. 553; Faugman v. Hersey, 43 Mo. 122.)

II. As all the instructions asked by the plaintiffs were given, and given in such form as to present the propositions of law in the strongest light before the jury, the plaintiffs have no right to complain. And it presents an additional reason why the verdict should not be disturbed. These instructions not only comment on the evidence, but they argue the law and the facts of the case in favor of the plaintiffs. The third instruction declares that if the jury find certain facts to be true, “they ought to find that the influence of Williams over the mind and will of Petticrew had not ceased to exist on the 12th of September, 1860.” The fourth instruction declares that if certain other facts exist, the jury ought to find that the influence of Williams had not ceased to exist on the 13th of September, 1860. The fifth instruction given for plaintiff declares that if the jury find that the influence of Williams existed on the 12th of September and the 13th of September, in the transactions of those dates, they will be warranted in concluding that the will was procured by undue influence of Williams. This is clearly an argument from the facts made by the court, from which the court draws the conclusion that certain other propositions are true, of which there is not a particle of evidence; and the court then tells the jury that they ought to come to the same conclusion, and that from these conclusions they are warranted in concluding, further, that the will was procured by undue influence and is void. This is commenting on the evidence--telling the jury what the court thinks the evidence proves, and what the jury ought to find and are warranted in finding. The jury had the right to disregard these suggestions.

III. Counsel then proceeded to argue at some length that the case contained evidence to support a verdict.

WAGNER, Judge, delivered the opinion of the court.

The instructions given by the court on the trial of this cause were unexceptionable, provided there was evidence sufficient to justify them. When this cause was here before we held that a transaction like the will in question, between a guardian and ward, could not stand if the period between the making of the will and the coming of age of the ward was short, unless the circumstances showed in the most satisfactory manner, and beyond a reasonable doubt, the most entire good faith on the part of the guardian. (Garvin v. Williams, 44 Mo. 465.) When a ward has but recently arrived at age, any acts of his conferring an advantage or bounty upon his late guardian excite the strongest suspicions, and are viewed by the courts with an almost invincible jealousy. They are considered as constructively fraudulent on account of the confidential relations existing between the parties. They are withdrawn from the operation of the ordinary rules of evidence, and the burden is devolved on the beneficiary of showing that the gift or arrangement was fair and conscientious and beyond the reach of suspicion. A rule of public policy and pure morals lies at the foundation of this principle and demands its stringent enforcement. Any one...