Campbell v. Carlisle

• Decision Date: 21 May 1901
• Parties: CAMPBELL et al., Appellants, v. CARLISLE et al
• Court: Missouri Supreme Court

63 S.W. 701

162 Mo. 634

CAMPBELL et al., Appellants, v. CARLISLE et al

Supreme Court of Missouri, Second Division

May 21, 1901

Appeal from Boone Circuit Court. -- Hon. Jno. A. Hockaday, Judge.

Affirmed.

W. M Williams, C. B. Sebastian and Webster Gordon for appellants.

(1) The trial court committed reversible error in giving and permitting to be read to the jury defendants' instruction number 2. The undisputed evidence shows that at the time of the making of the will, the defendant Carroll was managing all the business of the testator; that he had the old man at his home and had the absolute control of him and all he had that the old man was sick, weak in body and mind, as helpless as a child, was waited on, cared for, nursed and given his medicine by Carroll and wife who were of no kin to him, and according to their own testimony expected and received compensation for their services; they derived a benefit from the will and under such circumstances, the rule is changed. The confidential relations probably could not be more strongly expressed than they are by the eighth item of the will. It is earnestly insisted that this places the case within the exception where the law requires the defendant to show that the will was made freely and voluntarily, without any undue influence, fraud or deceit upon the part of the defendants, Thomas H., and Bettie W. Carroll. Maddox v Maddox, 114 Mo. 46; Hegney v. Head, 126 Mo. 628; Dingman v. Romine, 141 Mo. 466; Gordon v. Burris, 153 Mo. 223; Tibbe v. Kamp, 154 Mo. 580. (2) The trial court committed a further reversible error in giving and permitting to be read to the jury defendants' instruction number 7. This instruction is not applicable to the facts in this case. The defendants charged with undue influence are not of kin to the testator. The rule laid down in the case of wife and children does not apply here. The defendants, Thomas H. and Bettie Carroll are strangers to the testator's blood, serving him for pay. They served him kindly and well and were well paid by the allowance of their bill for such services by the probate court and paid out of Carlisle's estate, to say nothing of the thirty-two hundred dollar mortgage on the farm which was released, and the thousand dollar check obtained as a gift. This instruction asserts a novel doctrine that any degree of influence over another acquired by kindness and attention can never constitute undue influence within the meaning of the law. Hegney v. Head, 126 Mo. 629.

Odon Guitar, Wm. R. Gentry, N. T. Gentry and Wellington Gordon for respondents.

(1) Defendants' instruction 2 is a literal copy of one that has time and time again, been approved by this, and other courts of last resort. Carl v. Gabel, 120 Mo. 293; Sehr v. Lindemann, 153 Mo. 288. The burden is not on the beneficiary to show why he received the gift, or that the will was not the result of undue influence. Aylward v. Briggs, 145 Mo. 613; Cash v. Lust, 142 Mo. 642. It has often been decided, that the onus is on the proponents of the will to prove the proper execution of the will and also that the testator was of sound mind and legal age. When these facts are shown, a prima facie will is established, and the burden is then upon the contestants to show fraud or undue influence. Maddox v. Maddox, 114 Mo. 46; Harris v. Hays, 53 Mo. 96; Baldwin v. Parker, 99 Mass. 79; Jackson v. Hardin, 83 Mo. 182; Morton v. Heidorn, 135 Mo. 608; Fee v. Taylor, 83 Ky. 259; Kitchell v. Beach, 35 N.J.Eq. 446; Rockwell's Appeal, 54 Conn. 119; Schouler on Wills, sec. 239. (2) No error was committed by the trial court in giving instruction 7 at the request of defendants. McFadin v. Catron, 138 Mo. 218; Riley v. Sherwood, 144 Mo. 366; Carl v. Gabel, 120 Mo. 283; Jackson v. Hardin, 83 Mo. 175. The mere fact that defendant Carroll went for the attorney to write the will, the fact that the testator was living with the Carroll family at that time, coupled with the further fact that Mrs. Carroll receives a small part of his estate, do not show undue influence, neither do they tend even to show it. Doherty v. Gilmore, 136 Mo. 414; Rule v. Maupin, 84 Mo. 591; Carl v. Gabel, 120 Mo. 295; Eckert v. Flowry, 43 Pa. St. 52; Aylward v. Briggs, 145 Mo. 613; West v. West, 144 Mo. 119; Montague v. Allan, 78 Va. 592. The undue influence which will invalidate a will must be such as amounts to overpersuasion, coercion or force, destroying the free agency and will power of the testator. Ketchum v. Stearns, 8 Mo.App. 70; s. c., 76 Mo. 396; McIntyre v. McConn, 28 Iowa 480; Barnes v. Barnes, 66 Me. 286; Pendlay v. Eaton, 130 Ill. 69; Wilbur v. Wilbur, 129 Ill. 392; Eckert v. Flowry, 43 Pa. St. 52; Forney v. Ferrell, 4 W.Va. 729; 2 Greenl. on Evid., sec. 688; Jarman on Wills (Perkins Ed.), p. 72; Redfield on Wills (3 Ed.), pp. 31, 32; Woerner's Amer. Law of Admr., sec. 31. The undue influence must be such as to completely subjugate the mind of the testator to the will of the person operating upon it. Tawney v. Long, 76 Pa. St. 115; Elkinton v. Brick, 44 N.J.Eq. 165; Schmidt v. Schmidt, 47 Minn. 457; Tyson v. Tyson, 37 Md. 567; Children's Aid So. v. Loveridge, 70 N.Y. 387. The influence acquired by acts of kindness and attention is not undue influence, such as will invalidate a will. Thompson v. Ish, 99 Mo. 182; Jackson v. Hardin, 83 Mo. 185; Mackall v. Mackall, 135 U.S. 171. Influence which exists through attachment, affection or a desire to gratify, or which results from argument and appeals to reason and judgment, is not undue influence. Schofield v. Walker, 58 Mich. 96; Wise v. Foote, 81 Ky. 15.

BURGESS, J. Sherwood, P. J., and Gantt, J., concur.

OPINION

BURGESS, J.

This is a statutory contest of the will of John Carlisle, deceased. The will was executed on the twenty-third day of May, 1894, and admitted to probate in Boone county where the testator died, on the twentieth day of October, 1894, and letters granted to Thomas H. Carroll, the executor named in the will, in November, 1894, who as such executor, took charge of the estate.

The suit is being prosecuted by the sister and other near relatives of the testator, who allege in the petition that at the time of his death he owned personal and real property of the value of about twenty thousand dollars, a large portion of which was by the will given to persons who were of no kin and had no claim upon the bounty of the testator. They further allege that the testator, at the time of making the pretended will, was an old man; that his mind had become impaired by disease and the effect of medicine; that he was incapable of making a will, and that the making and publication thereof was procured by the defendants, Thomas H. Carroll and Bettie W. Carroll, by fraud, artifice and undue influence, which they exercised over the deceased, and that it is not his will.

The answers were general denials and affirmed the validity of the will.

The portions of the will that have any bearing upon the issues involved are as follows:

"Item 1. I give and devise to my sister, Susan Campbell, of Benton county, Arkansas, three lots in Rogers, Arkansas, each lot containing one acre more or less, and known as the John French property and situated near the college. I also give to my said sister the sum of three hundred dollars in money.

"Item 2. I give and bequeath to Mary Eliza Harrison, daughter and only child of my sister, Mahala Harrison, deceased, the sum of three hundred dollars in money.

"Item 3. To the five children of my brother, Thomas Carlisle deceased, late of Gallatin county, Kentucky, I give and bequeath the sum of one hundred dollars each.

"Item 4. To the children of my deceased sister, Mrs. Sallie Griffin, late of Gallatin county, Kentucky, I will and bequeath the sum of five hundred dollars, which sum I want to be equally divided among them, share and share alike.

"Item 5. I have not heard from my brother, Daniel Carlisle, since 1852; he was then living in Sacramento, California. If he is still living I give to him the sum of five hundred dollars, but if he is dead I want said five hundred dollars to be equally divided among his heirs.

"Item 6. To Mrs. Ann Wregg, I give and bequeath the sum of sixteen hundred dollars. She was a sister of my first wife and is now living in Georgetown, Scott county, Kentucky. I desire that this money be paid to her by my executor, and if any of it is left after her death, I want the same divided equally among her daughters, viz., Emma, Huldah, Lula, Bettie W. and Fannie.

"Item 7. After paying all my just debts and funeral expenses, and also putting up a suitable monument over my last resting place and the graves of my two wives, I desire that my executor divide equally the residue of my estate among the following: The children of my brother, Thomas Carlisle, the children of my sister, Sallie Griffin, the children of my brother, Daniel Carlisle, my sister, Mrs. Susan Campbell, Mary Eliza Harrison, daughter of my sister, Mahala Harrison, deceased, and the above-named children of Ann Wregg, Emma Wregg, Huldah Kelley, Lula Wregg, Bettie W. Carroll and Fannie Ammerman.

"Item 8. I hereby nominate and appoint my trusted friend, Thomas H Carroll, as my sole executor, and in consideration of the confidence that I have in his business ability and in his honor, his honesty and his integrity, I request that he be required to give bond and security for only two thousand dollars. My estate is worth much more than that amount, but I know Carroll and I am sure he will attend to it right as he has attended to my business for a good long time. I request that my executor see that my body is buried to the left of where my wife, Myra, is buried, and that he also see that the remains of my first wife are moved and placed to the left of where I rest. ...