Baker v. Spears
| Decision Date | 08 March 1948 |
| Docket Number | 40100 |
| Citation | 210 S.W.2d 13,357 Mo. 601 |
| Parties | Anna Baker, Olive Baker, Emma Baker Graham, Stella Uptegrove, Rachel Spears, David Ausbin Stuart, Helen Burger Dowling Zanzri, Mary Henderson, E. C. Baker, Helen v. Jones, Mal E. Porter, Gertrude C. Spalding, Susie Baker Mathiesen, Walter Stevens, Mary Stevens Morrie, Mary Stevens Morrie, Guardian of the Person and Estate of William Stone Stevens, n.c.m., and Flora Baker Menefee, Appellants, v. Everett B. Spears, Bernadine Stuart Jones, Lorene Stuart, Dorothy Stuart Hixson, Lucille Spears Meyers, Paul Meyers, Mildred Menefee, William Robert Jones, Reverend William G. Bensberg, Samuel Baker, Benj. Hollis, Virginia Jones Cline, the Executive Officers of Montgomery City, Missouri, Chapter of the Daughters of the American Revolution, Montgomery City Cemetery Association, the Christian Church of Montgomery City, Missouri, Clara Geary, Lillian Austin, Robert Austin, Margaret Higbee, Louise Giraud, Mary Duvall, Harold Duvall, Sandrasue Dresker, Herman Dresker, R. L. Chisholm, Two Sons of R. L. Chisholm, Lizzie Rogers, A. C. King, Laura M. Walker, Genevieve Woolsey, Lena Belle Newkirk, John Clay, Marie Gibson, Clara Baker; Council of Clubs, Girls Hotel, City Union Mission of Kansas City, Missouri, Board of Curators of the University of Missouri, Salvation Army of Kansas City, Missouri, Children's Mercy Hospital of Kansas City, Missouri, James E. Gibson, S. Clay Baker, James E. Gibson, S. Clay Baker, Executors of the Alleged Last Will and Testament of Emma S. Ganson, Deceased, J. R. Hoover, J. H. Clay and Dave Morris, Constituting the Board of Trustees of the Memorial Christian Church and the Memorial Christian Church, 72nd Street and the Paseo, Kansas City, Missouri, Raphael Miller, Jr., and Clara Spalding |
| Court | Missouri Supreme Court |
Rehearing Denied April 12, 1948.
Appeal from Warren Circuit Court; Hon. Frank Hollingsworth Judge.
Affirmed.
A H. Juergensmeyer, Glover E. Dowell and N. Murry Edwards for appellants.
(1) The court erred in taking the question of undue influence from the jury, and in refusing to give plaintiffs' offered instructions P-5, P-10, P-11, P-12, P-13 and P-14, all on the issue of confidential relationship and undue influence because there was material, competent and substantial evidence on that issue to have been submitted to the jury. Clark v. Powell, 175 S.W.2d 842; Pulitzer v Chapman, 85 S.W.2d 400; Welch v. Welch, 190 S.W.2d 936. (2) Undue influence need not be proved by direct and positive evidence, but may be shown indirectly by the reasonable and natural inferences drawn from the facts and circumstances proved; and in this case there were sufficient material and substantial facts from which such inferences could be drawn, and the issue of undue influence should have been submitted to the jury. Clark v. Powell, 175 S.W.2d 842; Welch v. Welch, 190 S.W.2d 936; Webster v. Leiman, 44 S.W.2d 40; Odom v. Langston, 152 S.W.2d 124; Mowry v. Norman, 204 Mo. 193; Larkin v. Larkin, 119 S.W.2d 351; Neal v. Caldwell, 34 S.W.2d 104; Teckenbrock v. McLaughlin, 108 S.W. 46; Gott v. Dennis, 246 S.W. 218; Naylor v. McRuer, 248 Mo. 423; Sittig v. Kersling, 223 S.W. 748; Walter v. Alt, 152 S.W.2d 135; Barkley v. Cemetery Assn., 153 Mo. 300; Smith v. Smith, 196 S.W.2d 5. (3) Where a confidential relationship is proved to have existed between the testatrix and a beneficiary under the will, and such relationship is coupled with underlying facts and inferences that undue influence could have been used by the beneficiary, the law presumes that it was used, and that presumption, with its underlying facts and inferences, once being in the case, never does or can disappear, but raises an issue for the jury. Loehr v. Starke, 56 S.W.2d 772; Bridwell v. Swank, 84 Mo. 455; Harvey v. Sullens, 46 Mo. 147; Pulitzer v. Chapman, 85 S.W. 400. (4) The court erred in refusing to submit to the jury the issue of undue influence, because there was sufficient material and substantial evidence that a confidential relationship existed between the testatrix and certain of the defendants, beneficiaries under the will, and that said defendants were, in fact, active in procuring the execution of the will. Loehr v. Starke, 56 S.W.2d 772; Clark v. Powell, 175 S.W.2d 842; Pulitzer v. Chapman, 85 S.W.2d 400; Welch v. Welch, 190 S.W.2d 936; Odom v. Langston, 152 S.W.2d 124; Rex v. Masonic Home of Missouri, 108 S.W.2d 72; Heflin v. Fullington, 37 S.W.2d 931; Byrne v. Byrne, 250 Mo. 632; Burton v. Holmes, 231 S.W. 630; Webster v. Leiman, 44 S.W.2d 40; Smith v. Smith, 196 S.W.2d 5. (5) In determining whether or not a will was the result of undue influence exercised over the testatrix, the age mental and physical condition of the testatrix at the time the will was executed, and the will itself, are relevant facts to be considered. Myers v. Hauger, 98 Mo. 433; Neal v. Caldwell, 34 S.W.2d 104; Larkin v. Larkin, 119 S.W.2d 351; Turner v. Butler, 253 Mo. 202; Moore v. McNulty, 164 Mo. 111; Zorn v. Zorn, 64 S.W.2d 626. (6) A will that is shown by competent evidence to be in fact the product of undue influence on the part of one or more legatees or devisees, out of several, must be set aside as a whole, although other beneficiaries in the will had no part in the act which produced the will. McCarty v. Fidelity Natl. Bank, 30 S.W.2d 19; Gott v. Dennis, 246 S.W. 218; Teckenbrock v. McLaughlin, 108 S.W. 46; Roberts v. Bartlett, 190 Mo. 703, 89 S.W. 858. (7) The court erred in admitting in evidence D. Ex. 7, a demand filed by Mrs. Stella Uptegrove, a plaintiff, in the probate court of Montgomery County, Missouri, against the estate of Emma S. Ganson, deceased; and in admitting in evidence D. Ex. 6, a demand filed by Rachael Spears and E. B. Spears against said estate; and erred in admitting in evidence D. Ex. 81, a letter written by George G. Jones to Flora Menefee; and in admitting D. Ex. 82, an excerpt copied by S. Clay Baker from a letter purporting to have been written by Helen V. Jones to Flora Menefee. Neither of these exhibits were revelant to any issue in the case, and could not be binding upon the other plaintiffs as admissions against interest. The effect of their admission was highly prejudicial to plaintiffs' case. Adams v. Kendrick, 11 S.W.2d 16; Zorn v. Zorn, 64 S.W.2d 626; Schierbaum v. Scheme, 157 Mo. 1, 57 S.W. 536; Teckenbrock v. McLaughlin, 108 S.W. 46; Gott v. Dennis, 246 S.W. 218; Heinbach v. Heinbach, 262 Mo. 69. (8) Instruction D-2 is erroneous because it directed the jury that there was "no evidence of any undue influence practiced upon Mrs. Ganson in the execution of the instrument" in question. There was such evidence and this instruction was confusing and misleading to the jury. Chastain v. Winton, 152 S.W.2d 165; Schulz v. Smercina, 1 S.W.2d 113; Reith v. Tober, 8 S.W.2d 607; Gettys v. American Car Co., 16 S.W.2d 85. (9) Instruction D-2 is also erroneous, in that it directed the jury that, "You cannot find against the will on that ground" (undue influence) because it referred to a "ground" or issue which had been submitted to the jury. It was confusing to the jury in trying to apply the instruction to the only issue submitted, testamentary incapacity. Chastain v. Winton, 152 S.W.2d 165; Reith v. Tober, 8 S.W.2d 607; Kleinlein v. Foskin, 13 S.W.2d 648. (10) It was error to instruct the jury that there was no evidence on undue influence without instructing them what undue influence was. Undue influence and testamentary incapacity are very closely associated in this case, that the wording of this instruction was confusing in its application to the one issue of testamentary incapacity, and was tantamount to a directed verdict. Doyle v. Terminal Co., 31 S.W.2d 1010; Chastain v. Winton, 152 S.W.2d 165. (11) The court erred in giving defendant's Instruction D-11 because said instruction gave an erroneous definition of unsoundness of mind, singled out and commented on a certain part of the evidence, minimized and destroyed the effect of plaintiffs' evidence and instructions. Heinbach v. Heinbach, 262 Mo. 69; Schieberl v. Schieberl, 261 Mo. 706; Post v. Bailey, 254 S.W. 71; Hartman v. Hartman, 284 S.W. 488. (12) Instruction D-11 is further erroneous in not requiring the jury to find that Emma S. Ganson, the deceased, had sufficient testamentary capacity to know the number and names of the natural objects of her bounty, their desserts with reference to their conduct toward her, and their capacities and necessities, before they could find that the deceased was of sound mind. Hartman v. Hartman, 284 S.W. 488; Byrne v. Fulkerson, 254 Mo. 97. (13) Instruction D-8 is erroneous because it directed the jury that, although they believed that Emma S. Ganson did not have sufficient mental capacity to make a will under the instructions both prior and subsequent to the making of the will, yet they could find she had such capacity at the time the will was made. There was no evidence that the deceased had lucid intervals. The evidence proved that the deceased was suffering from senile dementia and arteriosclerosis of a permanent and progressive character and was of unsound mind long before the will was written. Therefore a presumption arose that Mrs. Ganson was of unsound mind when the will was written. Byrne v. Fulkerson, 254 Mo. 97; Buford v. Gruber, 223 Mo. 231; State v. Lowe, 93 Mo. 547. (14) The court erred in refusing plaintiffs' instructions P-6, C-1, P-7, P-8 and P-9, which contained the clause "without the aid of any other person," and erred in compelling plaintiffs to strike this clause from their instructions offered and erred in refusing said instructions above mentioned which had in each of them the clause "without the aid of any other person." Pickett v. Cooper, 192 S.W.2d 412; Turner v. Anderson, 236 Mo. 523; Mowry v. Norman, 223 Mo. 463...
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Maurath v. Sickles
...so that it is not in fact (testatrix') will but that of the proponents." Aaron v. Degnan, supra at p. 221. See also Baker v. Spears, 357 Mo. 601, 210 S.W.2d 13 (1948); Snell v. Seek, 363 Mo. 225, 250 S.W.2d 336 (1952); Glover v. Bruce, 265 S.W.2d 346 (Mo.1954). An inference of undue influen......