89 S.W. 858 (Mo. 1905), Roberts v. Bartlett

Citation:89 S.W. 858, 190 Mo. 680
Opinion Judge:GANTT, J.
Party Name:REBECCA ROBERTS et al., Appellants, v. HERSCHEL BARTLETT et al
Attorney:W. E. Sherwood and C. F. Strop for appellants. H. K. White, T. J. Porter and A. W. Brewster for respondents.
Case Date:October 25, 1905
Court:Supreme Court of Missouri
 
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Page 858

89 S.W. 858 (Mo. 1905)

190 Mo. 680

REBECCA ROBERTS et al., Appellants,

v.

HERSCHEL BARTLETT et al

Supreme Court of Missouri, Division Two

October 25, 1905

Appeal from Buchanan Circuit Court. -- Hon. W. K. James, Judge.

Reversed and remanded.

W. E. Sherwood and C. F. Strop for appellants.

(1) Insanity is shown by proof of acts and conduct inconsistent with the character and previous habits of the party. McCurry v. Hooper, 12 Ala. 823. (2) Senile dementia is a distinctive form of insanity which incapacitates the party to such an extent as to destroy his capacity to make a will. This mental disease is one well recognized by all of the medical authorities and has been recognized by the Supreme Court of this State and by the courts of last resort in sister States. Bever v. Spangler, 61 N.W. 1072; App. of Ulmer, 12 A. 686; Kelly v. Gephart, 79 S.W. 420. (3) Mental incapacity to an extent to invalidate a will may be shown by taking into consideration the testator's physical condition, his age, the nature of the will and disposition of his property and the surrounding facts and circumstances. It is not necessary that insanity actually exist. It is sufficient if, upon the whole case made, the evidence tends to show lack of testamentary capacity. Chappell v. Trent, 19 S.E. 304. The above is a leading case which discusses thoroughly the general rule of testamentary capacity. See also: In re Shaw's Will, 2 Redfield, 107; App. of Richmond, 22 A. 82; McDaniel v. Crosbey, 19 Ark. 533; Harvey v. Anderson, 12 Ga. 76; Prentis v. Bates, 53 N.W. 153; Will of Mary Ames, 2 N.W. 408. (4) The statute in relation to will contests is in pari materia with the statutes governing ordinary trials, and if there is any testimony, either upon the question of mental incapacity, or upon the question of undue influence, the case should be submitted to the jury. State ex rel. v. Guinotte, 156 Mo. 520; Young v. Ridenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314. (5) The burden is upon proponents to establish the sanity of testator, nor is the burden shifted by the introduction of the testimony of the attesting witnesses. The attesting witnesses make a prima facie case, but when there is any evidence of insanity, or lack of capacity or undue influence, the burden of proof remains with the proponents throughout the case and it is not shifted. Jones v. Roberts, 37 Mo.App. 172; Elliott v. Welby, 13 Mo.App. 28; Benoist v. Murrin, 58 Mo. 322; Norton v. Paxton, 110 Mo. 456; Karl v. Gamble, 120 Mo. 297. (6) When the scrivener is the principal beneficiary the law exacts strict proof of the capacity of testator, and also that the testator was not unduly influenced and that the will was the free and voluntary act of testator. Harvey v. Sullins, 46 Mo. 152; Woods v. Devers, 19 S.W. 1; Patton v. Allison, 26 Tenn. 320. (7) Testator in this case by a will, written by the trustee of the principal beneficiary, devised and bequeathed practically one-half of his estate to strangers. The other half, under the law, he could not devise or bequeath because it belonged to the widow. Therefore, testator left all of his estate which he had a right to control by will to strangers. This fact is a very strong circumstance against the will and when coupled with old age and even a slight showing as to mental incapacity, casts upon proponents the burden of rebutting a presumption of undue influence. Caldwell v. Anderson, 104 Pa. 199; Will of Mary Ames, 2 N.W. 408; Renn v. Samos, 33 Tex. 760. (8) The fact that testator had been during his entire life on intimate terms with his relatives and heirs-at-law and that the will was not in accordance with the testator's past life and violated the Statute of Descents and Distribution and was unjust to his natural heirs, raises a strong suspicion of undue influence, which is sufficient to cast upon proponents the burden of showing that the will was the voluntary act of testator and was not procured by undue influence. In re Budlong's Will, 27 N.W. 925; Sims v. Russell, 57 N.W. 601; Gay v. Gillilan, 92 Mo. 250. (9) Where the principal beneficiary is the confidential friend and advisor of testator, the law exacts strict proof as to the mental capacity of testator, and also a direct showing that no undue influence was used. Jones v. Roberts, 37 Mo.App. 163; Woods v. Devers, 1 S.W. 1; Lane v. Moore, 23 N.W. 828; Garvin, Admr. v. Williams, 44 Mo. 465; Tibbe v. Kemp, 154 Mo. 580; Bradshaw v. Yates, 67 Mo. 221. (10) When a confidential relationship is shown between the principal beneficiary and testator, and when the testator leaves all of his estate which he has a right to dispose of to strangers, and when the scrivener was the confidential friend in the lifetime of the testator and receives the principal bequests or legacies, and when, as in this case, the will gives such scrivener absolute power of settlement of the estate without even the supervision of the court, it would seem that the concurrence of all these facts presents a case where constructive fraud and undue influence will be presumed, and a case which requires the strictest proof, both as to testamentary capacity and as to the absence of undue influence, and as to the fact that the testator had disinterested advice in the preparation of his will. Caldwell v. Anderson, 104 Pa. 199; Renn v. Samos, 33 Tex. 760. (11) Even though the evidence might not be conclusive or even entirely satisfactory or sufficient upon the question of lack of capacity, and even though the evidence might not be conclusive or entirely satisfactory on the question of undue influence or constructive fraud, yet it is certain that if there was any lack of testamentary capacity the opportunity for undue influence would increase in proportion to the degree of lack of capacity, and, therefore, where there is evidence, even though slight, upon both of these propositions, the proponents then have cast upon themselves the burden of making a clear showing, both as to capacity of testator and the absence of undue influence. McDaniel v. Crosby, 19 Ark. 533; Will of Mary Ames, 2 N.W. 408; Meyers v. Hauber, 98 Mo. 438; Caldwell v. Anderson, 104 Pa. 199; Renn v. Samos, 33 Tex. 760; Smith v. Smith, 19 N.W. 47; Appeal of Cuthbertson, 97 Pa. 163. (12) The rule is well settled that wherever the relation of confidence and trust exists, and the scrivener and confidential friend is in a position where his influence might operate unduly in favor of the charitable association of which he is a director, the charitable association claiming under the will has cast upon it the full burden of showing the absence of undue influence, and the fact that the testator had disinterested advice. This is the rule adopted in this State with reference to deeds, and also wills. Garvin, Admr., v. Williams, 44 Mo. 465; Rankin v. Patton, 65 Mo. 415; Yosti v. Loughran, 49 Mo. 599; Tibbe v. Kemp, 154 Mo. 580; In re Blaire's Will, 16 N.Y.S. 874; Dingman v. Romine, 141 Mo. 466; Caspri v. Church, 12 Mo.App. 293; Brigwell v. Swank, 84 Mo. 455; Ford v. Hennessey, 70 Mo. 580; Carl v. Gamble, 120 Mo. 297; Barkley v. Cemetery Assn., 153 Mo. 300. (13) Where the evidence tends to show that testator was suffering from mental weakness as a result of old age, or from insanity which was not produced by some sudden cause, but as the result of a chronic state of the brain; if this condition of the mind is shown to have existed before and after the time of the execution of the will, it is unnecessary to show the condition at the exact time the will was made, for the reason that the law will presume, in the absence of clear evidence to the contrary, that the same mental condition continued, and the same causes which produced lack of mental capacity still operated. Giles v. Hodge, 43 N.W. 163; Daily v. Casteel, 56 Wis. 444; Smith v. Smith, 60 Wis. 326; Von de Veld v. Judy, 143 Mo. 365; In re Bull's Will, 19 N.W. 503; Bever v. Spangler, 61 N.W. 1072.

H. K. White, T. J. Porter and A. W. Brewster for respondents.

(1) In consideration of this case the court will exclude evidence improperly admitted which includes all the evidence of Messrs. Gage, Roberts and Riley, husbands of the female plaintiffs. R.S. 1899, sec. 4390; Wood v. Broadley, 76 Mo. 33. (2) When the propoents made a prima facie case by examination of the attesting witnesses and introduction of the will in evidence the burden of proof to sustain intestacy devolved upon contestants and remained there till the close of the case, and unless substantial evidence sustaining the two charges against the will was introduced, the peremptory instructions given were correct. Crowson v. Crowson, 172 Mo. 691; Riggin v. Westminster College, 160 Mo. 570. (3) With the presumption in favor of testamentary capacity, there was no substantial evidence of want of testamentary capacity at the time of making the will which justified the court in allowing the case to go to the jury on that issue. Sehr v. Lindeman, 153 Mo. 203; Campbell v. Carlisle, 162 Mo. 634; Maddox v. Maddox, 114 Mo. 46; Von de Veld v. Judy, 143 Mo. 367; Southworth v. Southworth, 143 Mo. 59; Crowson v. Crowson, 172 Mo. 691; Crossan v. Crossan, 169 Mo. 161; Benoist v. Murrin, 58 Mo. 307; Cutler v. Zollinger, 117 Mo. 101; Farmer v. Farmer, 129 Mo. 538; Hamon v. Hamon, 79 S.W. 422; Catholic University v. O'Brien, 79 S.W. 901. (4) There was no substantial evidence of undue influence in the procurement of the will, and the court did not err in giving a peremptory instruction on that branch of the case. The proof failed to show any confidential relations between Bartlett and Howell, and there is no presumption of undue influence arising from the preparation of the will while acting as trustee of the Hoagland Endowment Fund. Studebaker v. Cofield, 159 Mo. 612; Campbell v. Carlisle, 162 Mo. 634; Myers v. Hauger, 98 Mo. 433; Tibbe v. Kamp, 154 Mo. 545; Berberet v....

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