Barkley v. Barkley Cemetery Ass'n.

• Decision Date: 28 November 1899
• Parties: BARKLEY et al. v. BARKLEY CEMETERY ASS'N et al.
• Court: Missouri Supreme Court

54 S.W. 482

153 Mo. 300

BARKLEY et al. v. BARKLEY CEMETERY ASS'N et al.

Supreme Court of Missouri, Division No. 2.

November 28, 1899.

WILLS — CONTEST — PLEADING — EVIDENCE — PRESUMPTION — INSTRUCTIONS.

1. Where a party, after his motion to strike out part of an adverse petition or answer is overruled, pleads over to the same matter, he waives right to a review of the ruling.

2. Admission of evidence of a matter alleged in the answer and admitted in the replication is not error.

3. There is no presumption of undue influence, on the ground of confidential relations, because the attorney who drew the will was one of the promoters and directors of, and a holder of a share of nominal value in, the cemetery association to which testator gave a legacy, such person not having been testator's attorney in other matters.

4. All the evidence adduced tending to show mental capacity to make the will and absence of undue influence in its procurement, it is not error for an instruction to assume such facts as true.

5. Error in instructing that the law presumes testator knew what was in his will when he signed it, unless it is found from all the evidence that he did not, and that plaintiffs have the burden of proving that he did not so know, is not ground for reversal of judgment for defendants in an action to set aside a will; testator being a man of more than ordinary intelligence, and successfully engaged in business at the time of executing the will; there being no evidence that he did not know the objects of his bounty, what property he had, and what disposition he was making of it, though there was testimony that his memory was not as good as in former years; he having in person solicited the witnesses to the will, to attest it as such; there being no fraud or undue influence in procuring the will; and he, after giving one-half his property to his relatives, the nearest of whom were a brother and sister, having given the balance to a cemetery association, which he had organized, and provided for erection of a modest monument on his lot in the cemetery.

Appeal from circuit court, Ralls county; W. W. Fry, Special Judge.

Action by Samuel K. Barkley and others against the Barkley Cemetery Association and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

Elijah Robinson, J. W. Hays, and Tapley & Fitzgerald, for appellants. Geo. A. Mahan, Roy & Hayes, and J. O. Allison, for respondents.

BURGESS, J.

This action is a statutory contest of the validity of the will of Matthew T. Barkley, who died in Ralls county, in March, 1892, to which Barkley Cemetery Association, his executors, and others, are made defendants. The will bears date August 16, 1890, at which time the testator was about 69 years of age. The petition alleges mental incapacity to make a will, and that undue influence was exercised over him by "some of the defendants, together with other persons acting in concert with them." The answer is a general denial, and further alleges that all of the legatees accepted their bequests under the terms of the will, and hence they should be estopped from saying that it is not the will of M. T. Barkley. Plaintiffs moved to strike out all of that part of defendants' answer in which it is alleged that all of the legatees accepted the provisions of the will, and should, therefore, be estopped from denying its validity. The motion was overruled. Plaintiffs then replied to the answer, admitting that the legatees took under the will, but denied that by so doing they acquiesced in its terms, or admitted it to be the will of M. T. Barkley. The testator was a bachelor, and lived upon a large farm, which he owned; and was also for many years, and at the time of his death, a stockholder and director in the Ralls County Bank. He had always been regarded as a shrewd business man, and was in the habit of loaning money upon real-estate security; was worth at the time of his death about $45,000. He had two sisters and one brother, who died before he did, all of whom were buried in a graveyard near New London, in said county, the fence around which had been suffered to decay, and the yard to become a common, and the tombs which at one time marked the resting places of the dead broken and disfigured. Some time during the 60's he made a will by which he gave his property to his three sisters and two brothers, who were then living, equally. Some time prior to August, 1889, he conceived the idea of making a charitable bequest endowing a cemetery wherein the graves of the dead could be better cared for, and began to arrange for a new cemetery. With this object in view, on August 6, 1889, he bought a tract of land near New London, and on the 26th day of August, 1889, he filed his petition and articles of association in the circuit court of Ralls county, asking for the incorporation of Barkley Cemetery Association, in which he was named as president, James P. Wood secretary, and James R. S. McCune treasurer. Upon this petition a pro forma decree was rendered incorporating the cemetery as prayed for. In the seventh article of association provision is made for receiving property "by gift, devise, or otherwise," and that the same shall be "applied exclusively to its acquisition, improvement, or ornamentation, care, custody, and management of the cemetery." The directors were M. T. Barkley, James P. Wood, Alex. C. James, James R. S. McCune and Reuben F. Roy. Shares, $10 each, of which M. T. Barkley owned 146 shares, and the other four directors 1 each. On September 21, 1889, he made a will giving something more than half of his property to his relatives, and endowing Barkley Cemetery Association with the balance. In item 17 of this will he said: "In order to provide for the permanent endowment of Barkley Cemetery Association, a corporation duly organized under the laws of the state of Missouri, and in which I own all the shares except four, and which said association was originated by me with a view to endow it as a work of charity and benevolence, as well as affording a resting place for the dead, I do hereby give and bequeath to James R. S. McCune and to his successor or successors, as trustees," etc., and then made provision for the endowment of the cemetery. On the 10th day of November, 1889, he deeded a portion of the land which he had bought from Mr. Wellman to Barkley Cemetery Association, being about 16 acres. The board of directors of Barkley Cemetery Association had many meetings, at which beautifying and laying off the ground into lots was discussed, and a landscape designer of St. Louis was consulted, who made a plat of the same, and, after consultation with Mr. Barkley, a lot near the entrance, and in a prominent part of the cemetery, was marked "Barkley Block." On the 16th day of August, 1890, he made another will, going on the streets of New London, and himself asking the witnesses to meet him in Mr. Wood's office. It was substantially the same as the one made September 21, 1889. In it Mr. Barkley made provision that he should be buried in Barkley Block in Barkley Cemetery, and a $1,000 monument should be erected at his grave. This will he took to his banker, sealed up, and left it with him; and after Mr. Barkley's death it was handed to the probate judge, and duly probated. By this will he provides liberally for his then surviving relatives and his servants, giving them about half his estate, and endowed Barkley Cemetery Association with the residue. In item 17 of this will he refers to Barkley Cemetery Association as "a charitable and benevolent association, founded principally by me." At the time of his death only one brother and a sister were living, both very old. The brother knew of the gift of the land to the cemetery. The sister died shortly after the testator. At the time he made this will he was engaged in transacting his own business in a more than ordinarily intelligent manner. He directed the management of his farm and business while on his deathbed. James W. Lear, for many years clerk of the circuit court, wrote most of his deeds, which was his principal legal business. George E. Mayhall, a lawyer of New London, was sometimes employed. Hon. James Perry Wood, now dead, wrote his last will, as well as that of September 21, 1889. He believed Mr. Wood to be an honest man, and a good lawyer; seemed to have a great admiration for him as a public man, and predicted a bright future for him. Besides writing the wills, he never did any law business for him. Mr. Barkley made Wood one of the directors in the cemetery association, and the board sent him to St. Louis to see the landscape designer, Joyce. He, together with the other directors, was active under the direction and management of Barkley, who was the promoter of the Barkley Cemetery Association. While J. P. Wood was one of the promoters and directors of the cemetery association, he owned but one share of stock, of a par value of $10. There were 150 shares of stock in the association, of which the testator owned 145 and Messrs. Wood, McCune, James, and Judge Roy 1 share each. The legatees named in the will received from the executors of the will the money bequeathed to them.

Plaintiffs requested the court to instruct the jury as follows: "(1) The court instructs the jury that if they believe, from the evidence in the case, that at the time of the signing of the paper in question James P. Wood was the owner of stock in the Barkley Cemetery Association, and an officer and legal adviser of said corporation, or one of its legal advisers, and if the jury further believe from the evidence in the case that at said time and for some time prior thereto said Wood was the confidential friend, attorney, and legal adviser of said M. T. Barkley, then the law presumes that said Wood exerted an undue influence over said Barkley, and that the signing of said will by said Barkley was the result of such influence, and the jury will find the issues for the plaintiffs, and...