72 S.W. 1065 (Mo. 1903), Crowson v. Crowson

Citation:72 S.W. 1065, 172 Mo. 691
Opinion Judge:BURGESS, J.
Party Name:CROWSON et al. v. CROWSON et al., Appellants
Attorney:Robert McPheeters, J. W. Tincher and N. D. Thurmond for appellants. D. P. Bailey and D. H. Harris for respondents.
Case Date:March 17, 1903
Court:Supreme Court of Missouri
 
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Page 1065

72 S.W. 1065 (Mo. 1903)

172 Mo. 691

CROWSON et al.

v.

CROWSON et al., Appellants

Supreme Court of Missouri, Second Division

March 17, 1903

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

Reversed.

Robert McPheeters, J. W. Tincher and N. D. Thurmond for appellants.

(1) The evidence in this case clearly shows that at the time testator made the will he understood the business about which he was engaged; knew the persons who were the natural objects of his bounty, and understood his relations to them, and knew what property he had, and the disposition he desired to make of it. The provisions of the will itself are such as any wise and prudent man would make for his wife and infant children, and the reasonableness of such provisions is proof itself of testamentary capacity. This being the case, the court should have taken the question of testamentary capacity from the jury. Cash v. Lust, 142 Mo. 630; McFadin v. Catron, 138 Mo. 197; Riggin v. Westminster College, 160 Mo. 570. (2) The law requires something more definite and tangible than mere indefinite generalities to destroy or overbalance the presumption of capacity. McFadin v. Catron, 138 Mo. 197; Doherty v. Gilmore, 136 Mo. 421. (3) The provisions of the will, without other testimony, establish both the sanity of the testator and his freedom from undue influence while directing and executing the same. The will itself is reasonable. Miller v. St. Louis Hospital, 5 Mo.App. 398. (4) The burden is on the plaintiff to show undue influence, coercion, overpersuasion, or fraud and deceit, in procuring the execution of a will. Such influence, to invalidate a will, must dominate the will of the testator, so that it will not be his own act and deed. And this influence must have operated upon the mind of the person making the will at the time the same was made. In this case the wife was not present on Tuesday evening when he asked his nephew who was going to town next day to call on the probate judge and get him a blank will, nor when his nephew handed him the papers late Wednesday evening, nor was she present at the time the will was written and signed, but was sent from the room by her husband and by the writer, Mr. Beaven, for fear that even her presence would invalidate it. McFadin v. Catron, 120 Mo. 275; Sunderland v. Hood, 84 Mo. 293; Tibbe v. Kamp, 154 Mo. 545. (5) The testimony of Mrs. Mary Gustine shows that it was the intention of the testator to leave his property by will to these younger children. The will is in accordance with the declarations made to her at the time the birth of his youngest child was announced to him. This is strong corroborative proof of testamentary capacity and also of freedom from undue influence. Thompson v. Ish, 99 Mo. 160. (6) The court admitted the testimony of Tom Miller as to statements made by deceased prior to the making of the will, which testimony was admissible for the purpose of showing the state of testator's mind, his previous purposes and intentions, and therefore, it was admitted without objection on the part of defendants, but it was not admissible for the purpose of showing undue influence of the wife over her husband. And yet it can be readily seen that it would have just this effect on the minds of the jury unless the court instructed the jury that they could not consider it for this purpose. The court gave no such instruction at the close of the testimony. This we contend was reversible error. Even if this testimony proved the existence of an influence of the wife, attempted to be exerted, yet it is not sufficient to invalidate the will, because there is no evidence that he yielded to her entreaties, nor that such an influence was exerted upon him at the time the will was made, which was ten days after the alleged statements. Thompson v. Ish, supra; Sunderland v. Hood, 84 Mo. 293.

D. P. Bailey and D. H. Harris for respondents.

(1) The expert evidence is all to the effect that it was not probable, though possible, that deceased was in condition, mentally, to make the will in question. The jury found that he was not and the trial court refused to interfere with the verdict. (2) Appellants, under second point, use this language: "When the formal execution of a will according to the requirements of the statutes is shown, as in this case was done, a will prima facie valid is established, and it then rests upon the contestants to overcome this presumption by substantial evidence." Citing McFadin v. Catron, 138 Mo. 197. This language omits the following words: "Beyond a peradventure and the subscribing witnesses testify to the proper age and sanity of the testator." In this case Beaven, one of the subscribing witnesses and who wrote the will, testifies that testator was not of sound mind. (3) Appellants' third point is that the provisions of the will establish both the sanity of the testator and his freedom from undue influence. They claim that "the will is reasonable," etc. Is this true? Deceased married a Miss Todd in 1860. She had a great deal more than he did. She was a good worker and manager and a good financier and made more of the living than he did. She was anxious to have a home of their own and all they could make they put in their home and bought out the shares of the heirs as fast...

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