Andrew v. Linebaugh

• Citation: 260 Mo. 623,169 S.W. 135
• Decision Date: 30 June 1914
• Docket Number: No. 16651.,16651.
• Parties: ANDREW et al. v. LINEBAUGH et al.
• Court: United States State Supreme Court of Missouri

169 S.W. 135

260 Mo. 623

ANDREW et al. v. LINEBAUGH et al.

No. 16651.

Supreme Court of Missouri, Division No. 1.

June 30, 1914.

Rehearing Denied July 14, 1914.

1. WILLS (§ 324)—CONTEST—TESTAMENTARY CAPACITY—QUESTION FOR JURY.

The evidence, on a will contest, as to testamentary capacity held to make a case for the jury.

2. WILLS (§ 166)—CONTEST—UNDUE INFLUENCE —EVIDENCE.

Evidence that the feelings of testator were hostile to some of the proponents of his will cannot show undue influence by them or in their behalf.

3. TRIAL (§ 98)—EXCLUSION OF EVIDENCE— RECORD.

There was no exclusion of evidence as complained; the record showing the court considered the evidence inadmissible, but, with a warning of the danger of reversal, gave the parties permission to introduce it, of which they did not avail themselves.

4. WILLS (§ 292)—CONTEST—EVIDENCE—PAYMENTS BY PROPONENTS.

Contestants of a will may not show that certain legatees took no part in the case because offered money by proponents for not joining in the contest; it appearing this was by way of compromise, and not as bribery of witnesses.

5. APPEAL AND ERROR (§ 231)—REVIEW—INSTRUCTIONS —BURDEN OF SHOWING ERROR.

Objection that the instructions were unnecessarily long and misleading and confusing to the jury will be overruled; appellant not pointing out, and a careful reading not disclosing, such evils.

6. TRIAL (§ 295)—INSTRUCTIONS—CONSIDERATION AS A WHOLE.

In determining whether words of an instruction are open to the objection of being an abstract proposition of law, the instruction should be read as a whole.

7. APPEAL AND ERROR (§ 215)—REVIEW— OBJECTIONS NOT MADE BELOW—INSTRUCTIONS.

Objection that an instruction is a comment on the evidence cannot be made for the first time on appeal.

8. WILLS (§ 400)—CONTEST—UNDUE INFLUENCE —EVIDENCE.

Evidence that testator's wife, and not he, gave to her son a large quantity of the son's notes held by testator has no such probative force to show lack of testamentary capacity or undue influence of the son or mother on testator in the making of his will that it could or should have influenced or changed the minds of the jurors.

9. WILLS (§ 400)—APPEAL—HARMLESS ERRORS —INSTRUCTIONS ON EVIDENCE.

Instructing that certain testimony could not be taken as any evidence of the mental condition of testator or of undue influence on him was harmless, where it had no such probative force as could or should have influenced or changed the minds of the jurors.

10. WILLS (§ 53)—CONTEST—EVIDENCE— STATEMENTS BY PROPONENTS.

Testimony of statements made to witnesses by proponents of the will as to the condition of testator's mind is admissible on a contest only to contradict the proponents as witnesses, and not as evidence of such condition.

11. TRIAL (§ 207)—INSTRUCTIONS—LIMITING SPHERE OF TESTIMONY.

An instruction limiting testimony to its proper sphere of contradicting witnesses is proper.

12. WILLS (§ 50)—CONTEST—INSTRUCTIONS— TESTAMENTARY CAPACITY.

Instructions in a will contest held in harmony with the rule that one has a disposing mind and memory when he is capable of comprehending the character, nature, and extent of his property, all the names and persons who naturally come within the range or circle of his

bounty, and the disposition he is making of his property.

13. WILLS (§ 329)—CONTEST—UNDUE INFLUENCE —PRESUMPTION.

Because contestants of a will could not locate proponents while the will was being drawn, it is not to be presumed that they had previously unduly influenced testator, so as to call for an instruction on prior undue influence.

14. WILLS (§ 332)—CONTEST—INSTRUCTIONS —UNDUE INFLUENCE.

It is proper, in a contest of a will for undue influence of testator's wife, to state in an instruction on undue influence what influence she has the right to exercise over his mind in disposing of his property.

15. WILLS (§ 155)—CONTEST—UNDUE INFLUENCE.

Such influence as testator's wife may acquire over him by her personal demeanor and conduct towards him, as his wife, through association with him, and the fact that she, by long association with him and by her treatment of and general demeanor towards him, gains his affection and absolute confidence, so that he desires to favor her in his will, to the exclusion of all others, or any one or more of his children or grandchildren, does not constitute undue influence.

16. TRIAL (§§ 186, 244)—INSTRUCTIONS—COMMENT ON EVIDENCE.

While, in a contest of a will for lack of mental capacity and undue influence, an unequal division by testator of his property among his children may properly be shown by the evidence and commented on in argument to the jury, an instruction that the jury could consider such a distribution on such issues would be improper as a comment on the evidence, giving undue prominence to such facts.

Appeal from Circuit Court, Nodaway County; William C. Ellison, Judge.

Suit by Anna R. Andrew and others against Mary A. Linebaugh and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

The plaintiffs brought this suit in the circuit court of Nodaway county to contest the validity of the will of their deceased grandfather, Jacob Linebaugh. The plaintiffs are the children of two of the testator's deceased children, and the defendants are his widow and his three living children. The alleged grounds of the contest are that the testator, at the time of making and publishing the will, was mentally incapable, and had undue influence exercised over his enfeebled mind by the defendants. A trial was had before the court and jury, which resulted in a judgment sustaining the will, and the plaintiffs duly appealed the cause to this court.

I will first state the undisputed facts of the case, and then the substance of the evidence introduced by counsel for plaintiffs, and thereafter such evidence as tends to contradict the case made for the latter.

The testator, as I gather it, was of foreign birth, but came to this country when quite young, first locating in the state of Iowa, and in 1859 he moved across the state line into Nodaway county, Mo., and there lived until 1910, when he died, at the advanced age of 82 years. The testator left surviving him his widow, Mary A. Linebaugh, a son, William J. Linebaugh, commonly called Jeff, and two daughters, Julia Farrens and Etta Hulse. The son, William, and the daughter Etta have children, but Julia was childless. In addition to the above named, the testator left eight grandchildren, seven of whom were the children of his deceased daughter, Sarah Jane Burch, who died June 14, 1910, a few months prior to his own death, and the other was Anna R. Andrew, the only child of a son, Francis Linebaugh, who departed this life 20-odd years prior to the death of the testator.

The estate of the testator was worth about $300,000, consisting of about 1,800 acres of Nodaway county land (the next to the best on earth), a hotel building in Clearmont, and about $75,000 worth of personal property of various kinds.

The will was executed September 1, 1910, about a month and a half before the testator's death. He thereby disposed of his property substantially as follows: (1) He gave to his widow about 900 acres of land and practically all of the personal property for life, with remainder to his son William J. and his daughters Julia and Etta in fee. (2) To William J. about 500 acres of land for life, with the remainder therein to his son William W. in fee. (3) To his daughter Julia about 200 acres of land for life, with the remainder to her children in fee. (4) To his daughter Etta about 200 acres of land for life, with the remainder in fee to her children. (5) To each of his said eight grandchildren the sum of $500, after the settlement of his estate. The widow was duly named the executrix by the will of the testator.

The testator had but little education, though endowed with fine sense and splendid business capacity, as well as a strong mind and a vigorous constitution. The testator's life was assiduously devoted to farming and stock raising, and by strict economy and frugality he accumulated the estate previously mentioned. His business activities continued down to about two years prior to his death, without the assistance of an agent or counsel, save perhaps one of his daughters at times did some clerical work for him. His business called him frequently to all parts of the community in which he lived, and for years he was well known by every one in that vicinity, and was by them called "Uncle Jake." His business transactions ran into the hundred every year, and involved many thousands of dollars. All of the witnesses spoke of him as a good man that tried to live right and to do no wrong; that he was a devoted husband, a loving father and grandfather, and was on good terms with all of his children and grandchildren. (A great life.)

The plaintiffs' evidence further tended to show:

That Francis Linebaugh, the son who died about 22 years before the testator departed this life, left surviving him a daughter, Mrs. Anna R. Andrew, one of the plaintiffs in this case, about 8 years of age. That about the same time the child's mother also died, and thereupon the testator took the child, Anna, into his own home and reared her as one of his own children, where she remained until she was married to _____ Andrew, at the age of 19. She lived and worked in the home of the testator and was treated by him as he treated his own children; he was very fond of, and was greatly attached to, her. She was equally strongly attached to him, and was strongly devoted to him. The testator often spoke to her regarding her father and how much he loved him and her, and frequently told her that she should have her father's share of his estate. Even after her marriage, when the work was heavy on the farm of the testator, she frequently went to his home and assisted them in doing the work, and during his last sickness she was almost constantly with him and...