Young v. Ridenbaugh

• Citation: 67 Mo. 574
• Parties: YOUNG, Appellant, v. RIDENBAUGH.
• Decision Date: 30 April 1878
• Court: United States State Supreme Court of Missouri

67 Mo. 574

YOUNG, Appellant,

v.RIDENBAUGH.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Buchanan Circuit Court--HON. JOSEPH P. GRUBB, Judge.

A. W. Slayback for appellant, argued that the burden was upon the defendants to prove that the testator had sufficient capacity to make a will, and that they had failed to do this, citing Clarke v. Fisher, 1 Paige, 171; Swineburne, pt. 2, § 25, pl. 5; 1 Redfield on Wills, 96, 130-132; Delafield v. Parish, 25 N. Y. 35; Parton v. Williams, 2 Curteis 530; Parke v. Ollatt, 2 Phillim. 323; Barry v. Butlin, 2 Moore Privy C. 480; Shropshire v. Reno, 5 J. J. Marsh. 91; Marsh v. Tyrrell, 2 Hagg. 122; Baker v. Batt, 2 Moore Privy C. 317; Crowninshield v. Crowninshield, 2 Gray 526; Den v. Johnson, 2 Southard 454; Boyd v. Eby, 8 Watts 72; Eaton v. Eaton, 8 Vroom 108; Benoist v. Murrin, 58 Mo. 307; Barry v. Butlin, 1 Curt. Ecc. 638; Chaffee v. The Bapt. Miss. Conv., 10 Paige 86; Aurand v. Wilt, 9 Barr (Pa.) 54; Mowry v. Silber, 2 Bradf. 133; Lake v. Ranney, 33 Barb. 49; Tyler v. Gardiner, 35 N. Y. 595; Cravens v. Faulconer, 28 Mo. 22; Hindson v. Kersey, 4 Burn Ecc. Law 85; Kinlesid v. Harrison, 2 Phillim. 549; Collins v. Townley, 21 N. J. Eq. 353; Scribner v. Crane, 2 Paige 147. The deceased was of unsound mind as shown by the evidence. Flint on Prac. Med. 158; 5 Liemssen Cyc. Prac. Med. 101; 1 Niemeyer Prac. Med. 175; Da Costa on Medical Diagnosis, 54; 1 Redfield on Wills, 63, 67 (note); Taylor Med. Jur. 629; 2 Greenlf. Ev., § 689; 1 Beck Med. Jur. 727, 729, 740. Stanton v. Weatherwax, 16 Barb. 259; Woodbury v. Obear, 7 Gray 467. If the defendants allege that the will was executed during a lucid interval, they assume the burden of proof of that. Harden v. Hayes,9 Penn. St. 151; White v. Wilson, 13 Ves. 89; Brogden v. Brown, 2 Addams 445; Atty.-Gen. v. Parnther, 3 Brown Ch. C. 444; McTaggart v. Thompson,14 Penn. St. 149; Parish v. Parish, 42 Barb. 274; Swineburne, pt. 2, § 4; Combe's Case, Moore, 759; Mountain v. Bennett, 1 Cox 353; Greenwood v. Greenwood, 3 Curt. Appendix II; Harwood v. Baker, 3 Moore (Jud. P. C.) 282; 2 Greenlf. Ev. 689; Ex parte Holyland, 11 Ves. 11; Cartwright v. Cartwright, 1 Phillim. 100; Ray's Med. Jur. of Insanity, §§ 402-410; Robinson v. Adams, 62 Me. 369; Dennis v. Weeks, 51 Geo. 24.

The will should have been set aside because it was dictated by Colhoun and was his will--not Young's. 1 Redf. Wills 131. He was the confidential friend of deceased, and the will conferred great benefits on him. In Yosti v. Laughran, 49 Mo. 594, this court held that donations to persons sustaining the relation of confidential friend and adviser of the donor will not only be watched with great jealousy, but will be set aside on the discovery of the least fraud. Every presumption will be against them. See also Harvey v. Sullens, 46 Mo. 147; Garvin v. Williams, 44 Mo. 475; Cadwallader v. West, 48 Mo. 483; Turner v. Turner, 44 Mo. 535. The evidence as to taxation of unimproved real estate should have been admitted. 'Hara on Wills, 16, 55.

Silas Woodson and Ben. Loan for appellants, argued that the first and fourth instructions given for the defendants ignored the question of undue influence, and were, therefore, improper. Iron Mountain Bank v. Murdock, 62 Mo. 73; Raysdon v. Trumbo, 52 Mo. 35; Rankin v. Rankin, 61 Mo. 297; Ried v. Piedmont & Ar. Life Ins. Co., 58 Mo. 422. The essential requisites of a valid will under our laws, are:

(a) That it must be made by a person possessed of testamentary capacity sufficient to make a will at the time it is executed.

(b) That it must be the product of his mind and be dictated by him, and must not be dictated and written by others.

(c) That it must be his deliberate, voluntary act, free from all undue influence. McClintock v. Curd, 32 Mo. 420; Harvey v. Sullens, 46 Mo. 152.

Old and infirm persons, whose minds are so clouded and disordered that they are incapable of attending to any business, have not sufficient capacity to make a will. Harvey v. Sullens, 46 Mo. 152.

The instructions given for the defendants did not properly submit these questions to the jury.

Hall, Vories, Vineyard and Ramey for the infant respondents.

HENRY, J.

This was a suit under the statute brought by plaintiff, a son of George Young, deceased, against John Williams and John Colhoun, and the daughter and grandchildren of said deceased, to have his will, which had been previously probated, set aside. The grounds upon which the probate of the will is contested are that it was procured by undue influence, and that George Young had not sufficient mental capacity to make a will. The will was made October 30th, 1874. George Young was then seventy-five years of age, he had for several years been in failing health, and the death of his son-in-law, Mr. Ridenbaugh, to whom he seems to have been greatly attached, so deeply affected him that he never recovered from the shock, but in a few days took his bed and in about a week after the death of Mr. Ridenbaugh had an attack of pneumonia, which in seven or eight days terminated fatally. His death occurred on Sunday, and on the previous Monday he sent for Allen H. Vories, Esq., Jno. Colhoun and Jno. Williams, to have his will prepared. Mr. Vories and the other gentlemen remained a few minutes, during which, Mr. Vories testified, “Mr. Young informed them what disposition he wished to make of his property, and they left with an understanding that they would return at 12 o'clock with the will. They returned at 12 o'clock, and after the will was read to him Mr. Young signed it, and the others, with Geo. T. Hoagland, attested it as witnesses. The following Friday the same parties were again sent for by Mr. Young, who desired to make a change in the will; and Mr. Vories took the one already executed, wrote another, making the changes suggested, which was the same day signed by Mr. Young and attested by the same parties as witnesses.

The Sunday following, Mr. Young died. Mr. Vories and the other attesting witnesses testified that Mr. Young was in his right mind when the will was signed by him, and that he seemed to understand perfectly the business he was transacting. On the other hand, the attending physician, Dr. Bertram, testified that he was called to see Mr. Young on Tuesday, (the day after the will was executed,) found him with pneumonia, his lungs very much inflamed; after that saw him every day till his death. At his age the pneumonia he had is fatal. On Tuesday the inflammation was so great witness knew he must have been sick on Monday before. Friday morning his lungs showed paralysis. He was delirious; witness had to wake him to talk to him. He was in a stupor and spoke with great difficulty. Men at his age with pneumonia are always delirious. From the first time witness saw him, never saw him in a condition when he could do business. His mind was not as strong on Friday after the paralysis as on previous days. He was sinking rapidly, and witness told Mr. Colhoun and the other gentleman that he would probably not live an hour, though he might possibly live several days. Mrs. Ellen Kercheval testified that after Mr. Ridenbaugh's death she was at Mr. Young's house all the time, except one or two nights, until his death; that about two weeks before his death he was taken with a chill and high fever, and never rallied from the time witness saw him. After he had the chill, at no time did she consider him in his right mind. A few days before his death he talked about a contract he had made with a man to kill bull-frogs for him at ten cents apiece. Mrs. Sparks sat up with him the Thursday night before his death. He talked about bullfrogs; talked wild all night; did not know witness. The next morning he did not know her. Friday night he was no better. Mr. Juslee sat up with Mr. Young Friday and Saturday nights; says he was flighty. Mrs. Charles Thompson saw him every day in his last illness. The day after Mr. Ridenbaugh was buried Mr. Young seemed alarmed; was tremulous and weak. He grew worse and sank rapidly till he died. He talked at random on every subject, and not sensibly about anything. He would mistake witness for Mrs. Ridenbaugh. On Thursday and Friday he was in a dying condition. Mrs. Triplett saw Young on Thursday before he died; at times was rational; saw him frequently from Tuesday. His mind was feeble and wandering; talked about frogs; did not know witness; he never seemed himself after Mr. Ridenbaugh's death. Mr. C. H. Thompson's testimony was to the same effect. Mrs. Austell saw Mr. Young after Mr. Ridenbaugh's death, and thought he was a crazy man. He asked witness if Mr. Ridenbaugh was dead? She said yes. He said, no; he is asleep. He walked the floor and wrung his hands, and told her to go and wake Mr. Ridenbaugh.

Mrs. Ridenbaugh testified that Mr. Vories dictated the will, saying, “Major, this had better be so and so, had it not?” My father acquiesced. Mr. Vories suggested that I, being a widow, should have more than my brother; that I should have the home place in town and the money. My father simply acquiesced. On Monday, while Mr. Young was giving Mr. Vories instructions in regard to his will, Mrs. Ridenbaugh testified that “Mr. Colhoun rose from his chair and said, ‘I do not wish to give security.’ Mr. Vories aroused my father, told him what Mr. Colhoun said, and asked if he should be required to give security; my father shook his head.” Mr. Vories testified that Mr. Young stated as a reason for changing the will made on Monday that he thought Mrs. Ridenbaugh and her son George had been provided for by insurance on Mr. Ridenbaugh's life, but that as no such provision had been made, he wished to change the will so as to provide for them, justice not having been done to his daughter and her son in the will. To the same effect is the testimony of Mr. Colhoun, who stated also that Mr. Young said he wished further to provide for her, as she would have to pay taxes on much unproductive property. Dr. Ellingood...