Dausman v. Rankin
Decision Date | 20 June 1905 |
Parties | MAGGIE R. DAUSMAN v. EUGENE C. RANKIN, Appellant |
Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court. -- Hon. Frank R. Dearing Judge.
Affirmed.
R. A Frazier, J. G. Williams and James F. Green for appellant.
(1) A jury has no right to alter the disposition of the testatrix's property simply because they may think she did not do justice to her family, and this rule applies with equal force to the courts. Hughes v. Rader, 82 S.W 54; Tibbe v. Camp, 154 Mo. 545; Berberet v. Berberet, 131 Mo. 411; Lorts v. Wash, 175 Mo. 502. (2) The settled meaning of "undue influence" in this State is such influence as amounts to over-persuasion, coercion or force, destroying the will-power of the testator. Hughes v. Rader, 82 S.W. 54; Morton v. Bowdern, 158 Mo. 379; Campbell v. Carlyle, 162 Mo. 634; Tibbe v. Camp, 154 Mo. 545; Southworth v. Southworth, 173 Mo. 59; Wood v. Carpenter, 169 Mo. 465; Riggin v. Westminster College, 160 Mo. 570; Sehr v. Linderman, 153 Mo. 276; Cash v. Lust, 142 Mo. 630. (3) It is not the existence of undue influence, but the exercise of it in the execution of a will, which invalidates it. There is no evidence whatever in the record of fraud or deception practiced upon Mrs. Rankin, and, in the absence of such evidence, the will ought to stand. Crowson v. Crowson, 172 Mo. 703; Thompson v. Ish, 99 Mo. 160; Kishman v. Scott, 166 Mo. 214; Wood v. Carpenter, 166 Mo. 465; Brinkman v. Reugsick, 71 Mo. 553. (4) There was no sufficient evidence of undue influence, and in the absence of substantial evidence of incompetency or undue influence, the case should not have been submitted to the jury. Hughes v. Rader, 82 S.W. 54; Berberet v. Berberet, 131 Mo. 399; McFadden v. Catron, 138 Mo. 197; Maddox v. Maddox, 114 Mo. 35; Kishman v. Scott, 166 Mo. 215; Defoe v. Defoe, 144 Mo. 458; Sehr v. Linderman, 153 Mo. 289. (5) The court erred in refusing to give instruction 13 for defendant, and also in refusing to give instruction 9 offered on part of defendant. Carl v. Gabel, 120 Mo. 283; Campbell v. Carlyle, 162 Mo. 634; Tibbe v. Camp, 154 Mo. 580; McFadin v. Catron, 138 Mo. 213; Riley v. Sherwood, 144 Mo. 366; Aylward v. Briggs, 145 Mo. 613; Hughes v. Rader, 82 S.W. 32.
Sam Byrns and E. J. Bean for respondent.
(1) The instructions were stronger in favor of appellant than warranted by law. The onus is on the party alleging the undue influence to prove it. Under the facts in this case, when it was shown that undue influence existed and that the mind of the testatrix was in a state of vassalage to E. C. Rankin and that he received the greater part of the estate in a will prepared by himself, then the burden of proof shifted to the defendant to show the fairness of the transaction. Gay v. Gillilian, 92 Mo. 250; Carl v. Gabel, 120 Mo. 297; Lins v. Lenhardt, 127 Mo. 282. (2) There was ample evidence of undue influence on which to submit the case to the jury. Bush v. Bush, 87 Mo. 481. (3) Direct evidence of undue influence is not required. It may be proved by facts and circumstances. Schouler on Wills (2 Ed.), par. 242; Moore v. McDonald, 61 Md. 340. (4) Defendant's demurrer to the evidence was properly overruled. Twohey v. Fruin, 96 Mo. 104; Gannon v. Gas Co., 145 Mo. 516; Gordon v. Burrus, 153 Mo. 223; Hughes v. Rader, 82 S.W. 32. (5) This court will not interfere with the verdict on the question of the weight of evidence, as that was for the jury. Appleby v. Brock, 76 Mo. 315; Young v. Ridenbaugh, 67 Mo. 589. (6) A radical change in the will tends to show indue influence. Voorhees v. Voorhees, 39 N.Y. 463; In re Bernsee's Will, 17 N.Y. 671. It is a suspicious circumstance that the principal beneficiary writes the will, and undue influence may be inferred therefrom. Yardley v. Cuthbertson, 108 Pa. St. 395. (7) The manner of executing the will was a badge of fraud. Baldwin v. Whitcomb, 71 Mo. 659.
This is an action instituted in the circuit court of Jefferson county, Missouri, at the January term, 1902, for the purpose of contesting the last will of Cecilia A. Rankin, deceased.
The petition is as follows:
Defendant Eugene C. Rankin filed his answer as follows:
The action was dismissed as to the executor of the will, and defendant Charles T. Rankin filed his answer as follows:
"Now at this day comes Charles T. Rankin, one of the defendants in the above entitled cause, and for answer to plaintiff's petition filed herein, admits each and every allegation in said petition contained."
The cause was tried before the court and a jury. The jury returned a verdict that the paper writing propounded was not the last will and testament of said Cecilia A. Rankin.
Motions for a new trial and in arrest of judgment were duly filed, heard and overruled, and the defendant Eugene C. Rankin appealed to this court.
On the trial the defendant, Eugene C. Rankin, offered evidence of the due execution of the will.
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