Barkley v. Barkley Cemetery Association
| Citation | 54 S.W. 482,153 Mo. 300 |
| Parties | BARKLEY et al., Appellants, v. BARKLEY CEMETERY ASSOCIATION et al |
| Decision Date | 23 December 1899 |
| Court | United States State Supreme Court of Missouri |
Appeal from Ralls Circuit Court. -- Hon. W. W. Fry, Special Judge.
Affirmed.
Elijah Robinson, J. W. Hays and Tapley & Fitzgerrell for appellants.
(1) The trial court committed error in overruling plaintiff's motion to strike out those parts of defendants' answer which alleged that certain of the plaintiffs had petitioned the court for the appointment of trustees to hold certain funds mentioned in the paper in controversy, and had accepted the benefit of certain provisions in said paper; and also committed error in admitting, against the objections of the plaintiffs, evidence offered by defendants tending to prove those allegations of said answer. The only issue which could be tried was "whether the writing produced, be the will of the testator or not." This is made so by the positive and unequivocal provisions of the statute. R. S. 1889, sec 8888. (a) If the testator had not sufficient mental capacity to make a will, or if the execution of the paper in controversy was induced by undue influence, then said paper was not the testator's will, and no act of any of the plaintiffs, occurring subsequent to the time of his death could make it his will. (b) The statutory proceeding to contest a will is an action at law, and the court could not in that proceeding, undertake to adjust the equitable rights of the parties. Lyne v. Marcus, 1 Mo. 410; Young v. Ridenbaugh, 67 Mo. 574; Garland v. Smith, 127 Mo. 583; Harris v. Hayes, 53 Mo. 90; McMahon v. McMahon, 100 Mo. 97; Owen v. Sinkler, 110 Mo. 54. (2) The will in question was drawn by Perry Wood, who was and had been for several years, the confidential friend and legal adviser of the testator. The undisputed testimony shows conclusively that testator not only looked to him for legal advice, but also sought, and followed implicitly, his advice in other matters. Perry Wood was also the principal promoter of the cemetery scheme, as well as a stockholder and director of the association, and its legal adviser and most active manager. These facts raise a presumption of undue influence, which defendants are called upon to rebut, by showing that the bequest to the cemetery association was the deliberate offspring of the testator's own unbiased mind, and not the result of that influence which is presumed to result from the relation of attorney and client. Garvin v. Williams, 44 Mo. 465; Harvey v. Sullens, 46 Mo. 147; Cadwallader v. West, 48 Mo. 502; Garvin v. Williams, 50 Mo. 206; Street v. Goss, 62 Mo. 226; Bradshaw v. Yates, 67 Mo. 228; Bridwell v. Swank, 84 Mo. 455; Gay v. Gillilan, 92 Mo. 250; Maddox v. Maddox, 114 Mo. 35; Carl v. Gabel, 120 Mo. 283. The fact that the bequest was not made to Mr. Wood personally, does not change the rule. Yosti v. Laughran, 49 Mo. 599; Rankin v. Patton, 65 Mo. 387; Ford v. Hennesy, 70 Mo. 580; Caspari v. First German Church, 12 Mo.App. 293; Bridwell v. Swank, 84 Mo. 455. (3) The court committed error in giving defendants' instruction numbered 4. If the question as to whether the testator knew the contents of the paper in controversy, was an issue in the case, it was a matter for proof, about which there were no legal presumptions; and said instruction was therefore calculated to mislead the jury, to the prejudice of plaintiffs. Morton v. Heidorn, 135 Mo. 608.
Geo. A. Mahan, Roy & Hays and J. O. Allison for respondents.
(1) Plaintiffs by replying to those matters in defendants' answer which they had moved to strike out, waived all rights raised by the motion. Williams v. Railroad, 112 Mo. 486; Eley v. Porter, 58 Mo. 158; Gale v. Foss, 47 Mo. 276; Pickering v. Telegraph Co., 47 Mo. 460; Scovill v. Glassner, 79 Mo. 454; Coffman v. Walton, 50 Mo.App. 404. The answer alleges that all of the plaintiffs received and accepted bequests under the terms of the will in controversy. Plaintiffs by their reply admit this to be true. This constitutes an estoppel and is properly raised under the issue, "will or no will," which was the only issue submitted to the jury by the court. Lilly v. Townsend, 68 N.W. 136; White v. Mayhall, 25 S.W. 881; Kats v. Schnaider, 34 N.Y.S. 315; Block v. Harrig, 79 Md. 146; Gorham v. Dodge, 14 N.E. 44; Wilbanks v. Wilbanks, 18 Ill. 17; Thellusson v. Woodford, 13 Ves. 210; 2 Williams Ex'rs, 1441; Hyde v. Baldwin, 17 Pick. 303; 2 Worner on Law of Adm'r, 1015; Wifram on Wills, p. 249. (2) The association did not have a legal adviser. Mr. Wood was neither its active manager nor its legal adviser. It was managed by a board of directors, of which testator Barkley was the moving, leading, controlling power. The directors did not receive compensation. The facts in the case do not raise the presumption of undue influence. The relation of attorney and client did not exist. Neither did any confidential relations exist. Mr. Wood did not derive any benefit from the will, either directly or indirectly. Hamilton v. Armstrong, 120 Mo. 597; Hegney v. Head, 126 Mo. 628; Gay v. Gilliland, 92 Mo. 263; Bidwell v. Swank, 84 Mo. 467; Hatcher v. Hatcher, 139 Mo. 624; Towson v. Moore, 11 App. D. C. 377. A presumption of undue influence will not arise from the drawing of the wills by Mr. Wood. Hamilton v. Armstrong, 120 Mo. 619; Samson v. Samson, 25 N.W. 233; Hunter v. Atkins, 3 Mylne & Keen, 113. (3) All through the record it stands boldly out that the testator knew exactly what he was doing. There was no evidence of unsoundness of mind, and no evidence of undue influence or to raise the presumption of undue influence. Aylward v. Briggs, 145 Mo. 612; Maddox v. Maddox, 114 Mo. 35; McFadin v. Catron, 138 Mo. 197. (4) When defendants' instructions are read together they are plain, fair and properly placed the case before the jury; but even if they did not, the verdict was for the right party and it is immaterial if error did occur. Von De Veld v. Judy, 143 Mo. 367; Vogg v. Railroad, 138 Mo. 172; Fox v. Windes, 127 Mo. 513; Osborne v. Morgan, 13 Mass. 1; Brobst v. Brock, 10 Wall. 519. A prima facie case for the probate of the will having been made by the testimony of the subscribing witnesses, and there being no evidence tending to show unsoundness of mind or undue influence, and there being no such relation between the testator and James P. Wood as would raise a presumption of undue influence, the judgment of the trial court should be affirmed regardless of any alleged error in the trial. Cash v. Lust, 142 Mo. 630; McFadin v. Catron, 138 Mo. 197; Maddox v. Maddox, 114 Mo. 35.
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 sixty-nine 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 Ralls 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 sixties 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 7th article of association, provision is made for receiving property "by gift, devise or otherwise," and that the same shall be "applied exclusively to the 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 one each.
On September 21, 1889, he made...
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