Gordon v. Burris

• Citation: 153 Mo. 223,54 S.W. 546
• Parties: GORDON v. BURRIS et al.
• Decision Date: 22 December 1899
• Court: United States State Supreme Court of Missouri

54 S.W. 546

153 Mo. 223

GORDON v. BURRIS et al.

Supreme Court of Missouri, Division No. 1.

December 22, 1899.

WILLS — FRAUD — UNDUE INFLUENCE — INSTRUCTIONS.

1. The sons of testatrix had been trying for some time to get their mother to make a will in their favor, but she had refused, and they had quarreled about it. They had urged her to make the will because she was dangerously sick. She died about 10 days after the will was made. The sons had frequently said that contestant, testatrix's granddaughter, should never have any of the property. When the will was made, testatrix reminded her husband that he had agreed to provide for contestant in his will, and he then agreed to do so in a few days, but he and his sons then knew that he was insolvent. Held, in an action by the granddaughter, who was disinherited, to set the will aside, that a finding of undue influence and fraud by the father and sons as to the testatrix was justified.

2. A charge that the issue was whether a writing was the will of deceased or not, and that the jury must find that it was not her will unless they found that she was of sound and disposing memory, was not objectionable as not fully stating the law, where other instructions clearly defined "sound and disposing memory."

3. A charge that, "if" a will was the result of undue influence, that alone was sufficient to impeach it, is not erroneous, as assuming that there was undue influence.

4. It was not erroneous, as suggesting that there were other grounds besides undue influence in the cause, there being other grounds supported by proof, as to which the jury was instructed in other instructions.

5. An instruction as to fraud of "defendants' in procuring the execution of a will includes a defendant who has died after suit brought, though the case was then dismissed as to him.

6. Error in an instruction not limiting the time of the exercise of undue influence in the execution of a will to the moment of the execution is cured where other instructions limit it to the "very time" of making the will.

7. A charge telling the jury they might consider certain facts is not objectionable in singling out particular facts, where it directed the jury to take into consideration all the facts and circumstances in evidence.

8. A charge that, if the testatrix would not have made the will "but for the undue influence exercised over her mind," etc., is not erroneous, as assuming that there was undue influence.

9. A charge defining undue influence as that which compels a testator to do that which is against his will from fear, desire of peace, or some feeling which he is unable to resist, is not objectionable as being too general, when read in connection with another charge that, if the will of deceased, from sickness or bodily decay, was subject to the domination of proponents, and that they exercised such influence over her mind in the disposition of her property as to destroy her free agency, and to cause such disposition to be made to suit proponent, and not herself, the will was not her will.

10. Requested instructions relating to matters fully treated in other instructions are properly refused.

Appeal from circuit court, Livingston county; E. J. Broaddus, Judge.

Action by Mary J. Gordon, by next friend, against George Burris and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Jas. M. Davis, John E. Wait, and Sheetz & Sons, for appellants. Miller Bros., for respondent.

MARSHALL, J.

This is a proceeding to set aside the will of Lucinda Burris on the ground that, while she was feeble in mind and body, her husband, John Burris, and her three sons, George, Gus, and Fred, procured her to make the will by their fraud, deception, and undue influence, by which she left her separate estate, some 244 acres of land, to her said three sons, and bequeathed to the plaintiff, who is the child of her deceased daughter, only the sum of $30. This is the third trip this controversy has made to this court. The first time it came up on an appeal by the defendants from a refusal of the trial court to enter a judgment in their favor establishing the will, after three petitions had been successfully demurred to. The trial court overruled the defendants' motion for judgment, and simply dismissed the case. On that appeal this court held that under section 2068, Rev. St. 1889, when a third petition has been adjudged insufficient, the court is only authorized to enter a judgment for treble costs, but cannot enter a judgment on the merits. Gordon v. Burris, 125 Mo. 39, 28 S. W. 191. The second time it came up here on appeal by the plaintiff from a verdict returned by direction of the court in favor of the defendants. It appeared that, after the first case was dismissed by the court, the plaintiff had instituted a second action, which had been tried, resulting as stated. This court, in an able and exhaustive opinion by Macfarlane, J., reversed the judgment of the lower court, and, after fully reviewing the evidence, said: "It shows that defendants were importuning their mother, then sick, to make a will, and leave them the property; and it worried her. A jury might well infer that defendants were endeavoring, by unreasonable and worrying importunities, to overcome the wish of their mother to allow plaintiff to inherit her proportion of the estate. The evidence shows testatrix did not consent to leave all her property to defendants until her husband had agreed to provide for plaintiff out of his property. This circumstance tends to show that the old lady held out in her wishes until this promise was made. The fact is that Mr. Burris never made any provision for plaintiff, and, soon after the death of his wife, died insolvent. If defendants knew of his insolvency and his inability to provide for plaintiff, and this promise was used to induce testatrix to make the will, the facts would have a tendency to prove the use of improper means and influences to secure the making of the will. Taking into consideration the condition of Mrs. Burris; her affection for her granddaughter, then a child of 12 years; her evident wish to provide for her; taking the opportunities of defendants, the grown sons of testatrix, living near by, desiring to secure to themselves the property. their persuasions; the worry of testatrix before making the will, and her grief afterwards, — we conclude that the evidence tended to prove undue influence, and that the issue should have been submitted to the jury." Gordon v. Burris, 141 Mo., loc. cit. 618, 43 S. W. 647. This decision became the law of the case upon its retrial in the circuit court. May v. Crawford (Mo. Sup.) 51 S. W., loc. cit. 698, 699. The case was then tried anew in the circuit court, the testimony being, in the main, the same as upon the former trial, which is fully stated in the opinion of Macfarlane, J., and in fact was read from the transcript or from the depositions used on that appeal; but upon this trial there was testimony tending to prove that the sons had been trying for some time to get their mother to make a will in their favor, and that she had refused, saying that she was not ready to do so; that they had been quarreling about it; that the doctor refused to attend her unless one of the sons (Gus) was sent away, as he was worrying her, and making her excited; that they urged her to make the will at that time because she was sick, and the measles was in the house, and if she contracted that disease in her weakened condition she would die (she did so, and died about 10 days after the will was made); that the sons had several times said, before the will was made, that Mary, the plaintiff, should never have any of the property; that when she made the will she immediately said, in the presence of Judge Broaddus, who had prepared the will for her, to her husband, "Now, Mr. Burris, you know you agreed to provide for Mary [the plaintiff], and now is the time to have your will written;" and that she further said, "Mr. Burris was going to provide for Mary," and that he said he intended doing so, but was not ready just then; that he would be in town in a few days, and that Judge Broaddus could write his will, "and he would then provide for the little girl." Instead of doing so, however, within 30 days after his wife died he deeded all his property to his sons, who turned it over to the bank that held their note for $20,000, which was indorsed by their father; and hence the sons knew, and the father knew, when his wife reminded him he had agreed to provide for their grandchild, and asked him to make a will then which would do so, that he could not do so, as he was then insolvent by reason of his indorsement for their sons. The trial resulted in a verdict and judgment for the plaintiff, from which the defendants have appealed to this court.

It is too clear to admit of serious debate that there was abundant evidence adduced in this case to justify the jury in finding that there was not only undue influence, but also fraud and deception, used by the defendants upon the deceased, which caused her to make this will, and that she would not otherwise have done so. She had steadily resisted all their importunities to make such a will, and wanted to provide for her granddaughter as well as for her sons; and it is perfectly clear from what she said to her husband when she executed the will that she did so only because he had promised to provide for Mary, the plaintiff, which he admitted then he had promised to do, and repeated that promise then, saying he would be in town in a few days, and have his will drawn, and would provide for her. Without this, it is plain, she would not have made the will. Her husband and her son George, who was present and heard this conversation, knew then that her husband could not make his promise good, yet they let her die believing it would be done. It was not done, but the husband, within 30 days after her death, deeded all his property...