Jackson v. Hardin

• Decision Date: 31 October 1884
• Citation: 83 Mo. 175
• Parties: JACKSON et al., Appellants, v. HARDIN et al
• Court: Missouri Supreme Court

83 Mo. 175

JACKSON et al., Appellants,

v.HARDIN et al

Supreme Court of Missouri.

October Term, 1884.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

H. S. Priest for appellants.

(1) There was evidence sufficient to go to the jury upon the question of the want of testamentary capacity of the testator. Benoist v. Murrin, 58 Mo. 307; Young v. Ridenbaugh, 67 Mo. 574; 1 Redfield Wills, 520-1. (2) If the testimony of Mrs. Jackson be true (and that was a question for the jury to determine), the testator was influenced in making the will, as to her, by a delusion. Benoist v. Murrin, 58 Mo. 307. (3) It was a question for the jury to determine, whether the will was attested by the attesting witnesses, Powell and George, in the conscious presence of the testator. Odenweider v. Scorr, 8 Mo. App. 458; Downie's Will, 42 Wis. 66. (4) The evidence tended fairly to show a confidential relation between the testator and James H. Hardin, and that he aided in procuring the will and wording it, and advised what changes the testator desired to make, and was benefited by it as executor, and by the exclusion of these appellants. The burden of proving fairness in the will and the non-abuse by James H. Hardin of the testator's confidence was upon the respondents, and this was a question for the jury. Harvey v. Sullens, 56 Mo. 372; Young v. Ridenbaugh, 67 Mo. 574.

W. A. Martin, also, for appellants.

The court erred in refusing to allow the witness, Mrs. Mary E. Herold, to testify as to what she had heard any of defendants say about the second will being made to make John equal with the other children, and as to what she had heard her brother John say as to the will being changed in consequence of dower to her step-mother. The declarations of a party to the record are admissible against him or one identified in interest with him. 1 Greenleaf Ev. (10 Ed.), pp. 247, 248, 249, secs. 171, 172; Armstrong v. Farras, 8 Mo. 627; Herst v. Robinson, 13 Mo. 82; Allen v. Allen, 26 Mo. 327. The court, also, erred in allowing defendants to ask the same witness if her father did not loan her husband a large amount of money that was never paid back. There were three things upon which the jury should have been allowed to pass. First, was the will executed in the manner prescribed by the statute? Second, was the testator of sound and disposing mind when he made his will? Third, was the execution of the will the result of undue influence exerted by J. H. and Ben. T. Hardin? The court erred in sustaining the demurrer to plaintiffs' evidence. Buesching v. Gas Light Co., 73 Mo. 219. In order to sustain the demurrer the evidence must not only be weak, but in fact there must be no evidence. Routsong v. Pacific Railroad, 45 Mo. 236. The right to dictate in advance what the finding of the jury shall be does not follow from the right of the court to review the finding. Lockwood v. Atlantic Mutual Ins. Co., 47 Mo. 50. Has not this court universally held that if there is any evidence it must go to the jury, who are the exclusive judges of its weight and sufficiency, however slight it may be, and whether direct or inferential? Chamberlain v. Smith, 1 Mo. 482; Labeaum v. Dodies, 1 Mo. 618; Speed v. Herrin, 4 Mo. 356; Obuchon v. Boone, 10 Mo. 442; Robins v. Alton Marine Fire Ins. Co., 12 Mo. 380; McFarland v. Bellows, 49 Mo. 311; Holiday v. Jones, 59 Mo. 482; Grady v. American Central Ins. Co., 60 Mo. 116.

John F. Williams, S. C. Major, H. M. Porter and Ben. T. Hardin for respondents.

(1) The first point in issue in this case is the charge of undue influence on the part of Jas. H. Hardin and Ben. T. Hardin. On this point the following authorities are cited: Rankin v. Rankin, 61 Mo. 295; Higgins v. Carllon, 28 Md., published in 8 vol. Am. L. Reg., p. 255; Clark v. Davis, 3 Am. L. Reg., p. 376; Redfield's Am. Will Cases, p. 259; Brinkman v. Rueggesick, 71 Mo. 556; Tingley v. Cowgill, 48 Mo. 291. (2) The second point in issue is as to the capacity of the testator to make a will. We cite the following authorities: Harvey v. Sullens' heirs, 56 Mo. 372; Benoist v. Murrin, 58 Mo. 307; Clark v. Davis, 3 Am. L. Reg., 376; Ray, Med. Jur. 313 & n.; Redfield on Wills, chap. 4, sec. 10; Thompson v. Kyner,65 Pa. St. 368; Stubbs v. Houston, 33 Ala. 555; Brinkman v. Rueggesick, 71 Mo. 553; Appleby v. Brock, 76 Mo. 314. (3) The third point in the case is as to the action of the court in sustaining the demurrer to the plaintiffs' evidence. On this point we cite the following authorities: Boyer v. Dively, 58 Mo. 510; Young v. Ridenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314; Boland v. Mo. R. Co., 36 Mo. 484, 491; Myer v. Pacific R. R. Co., 40 Mo. 151; Clark v. Hannibal, &c., R. Co., 36 Mo. 202, 217; Lee v. David, 11 Mo. 114, 116; Callahan v. Warne, 40 Mo. 131; Vinton v. Schwab, 32 Vt. 612; Thompson On Charging the Jury, p. 44; Chandler v. Von Roeder, 24 How. (U. S.) 227; Commissioners v. Clark, 94 U. S. 278, 284.

PHILIPS, C.

This is a petition to contest the validity of the published will of Ben. Hardin, deceased. The plantiffs, Susan Jackson and Mary Herold, are daughters of the testator and the defendants are his other children. The will was executed on the 26th day of August, 1879, and the testator died on the 31st day of said month.

The provisions of the will were as follows: First, to his wife he gave during her natural life all that the statute of the state allowed her, and at her death to revert back to the estate to go as thereinafter directed as to the remainder of his estate. Second, directed and authorized his executor to convert the balance of the property into money. Third, directed that out of the estate his daughter, Catherine, should be educated as his older daughters had been and a like provision for the education of his son, George, such as his other brothers had received. Fourth, to his daughter, Susan Jackson, he gave nothing, as she had already received twenty-three hundred dollars. Fifth, for his daughter, Mary Herold, he directed that the sum of five hundred dollars be set apart and the interest paid her annually thereon. Sixth, the residue of his property he directed should be divided equally among the rest of his children. Seventh, in the event of George or Catherine dying without issue he directed that their portion should be divided equally among his children, only in the same manner as provided for the remaiuder of the estate.

The validity of the testament is assailed on two grounds: First, for the want of sound mind aud memory. Second, because of his enfeebled condition consequent upon old age and sickness, the will was procured through the undue influence, fraud and artifice of the defendants, James H. and Ben. T. Hardin. The cause was submitted on proper issues for trial before a jury. On the conclusion of the plaintiffs' evidence the court sustained a demurrer to the same and directed the jury to return a verdict for defendants, which was accordingly done. The plaintiffs have brought the case here on appeal.

I Redfield on the Law of Wills (Vol. I, p. 124) says: “We have no instruments by which we can assume the extent of mental capacity. Each case will have to be decided upon its own peculiar facts and circumstances, and somewhat too upon the peculiar bias and theory of the triers of the fact. It is impossible they (the decisions) should be consistent when they have to be made by such a variety of courts acting upon such a contrariety of facts and circumstances. The result of the best considered cases upon the subject seems to put the quantum of understanding requisite to the valid execution of a will upon the basis of knowing and comprehending the transaction, or, in popular phrase, that the testator should, at the time of executing the will, know and understand what he was about.”

In Benoist v. Murrin, 58 Mo. 322, this court through Wagner, J., laid down the following rule: “A disposing mind and memory may be said to be one which is capable of presenting to the testator all his property, and all the persons who come reasonably within the range of his bounty, and if a person has sufficient understanding and intelligence, to understand his ordinary business, and to understand what disposition he is making of his property, then he has sufficient capacity to make a will;” citing Converse v. Converse, 21 Vt. 168, which declares that if the deceased was, at the time, capable of understanding the nature of the business and the elements of the will, that is, the nature and extent of his property and the persons to whom he meant to convey it and the mode of disposition, it is sufficient. And in Brinkman v. Rueggesick, 71 Mo. 556, Napton, J., said: “It is conceded in most of the cases that a man may be capable of making a will, and yet incapable of making a contract, or managing his estate.”

Applying these established standards to the facts of this case, did the plaintiffs on the issue of mental incapacity make out a prima facie case? The evidence showed that, at the time of the execution of this will, the testator was about 69 years old. For many years he had suffered from asthma and at times with dyspepsia. His physical condition was weak and he was naturally irritable. He had been prostrate in bed for two or more weeks and his life was despaired of; yet the evidence showed that he was a man of great tenacity of purpose and self-assertion; and there is nothing in the evidence to indicate that he had lost either the ambition to exercise dominion over his property, or interest in its management. He was possessed of memory and reason, and seemed to comprehend all his property, as well as the persons who were the subjects of his bounty. Mr. Powell who drafted the will testified in substance that when he arrived at the house the defendant, James Hardin, told him that his father wished to make a change in his will, and also what the change was. But when he reached the testator he seemed to comprehend precisely what change he desired...