Bradford v. Blossom

• Decision Date: 06 November 1907
• Parties: BRADFORD et al. v. BLOSSOM et al.
• Court: Missouri Supreme Court

105 S.W. 289

207 Mo. 177

BRADFORD et al. v. BLOSSOM et al.

Supreme Court of Missouri.

November 6, 1907.

1. WILLS — EXECUTION — KNOWLEDGE OF CONTENTS — INTENT.

Testatrix, a frail, aged woman, devoted to her children and grandchildren, desiring to make a will devising the income of her estate to her children for life and to her grandchildren surviving them in fee, but if they died without children then one moiety to her relatives and the other to the relatives of her deceased husband, communicated such desire to B., whom she desired as her trustee, and requested him to prepare a will to effectuate such disposition. B. made certain memoranda which he took to his attorney, informing him that he desired the property tied up as long as possible. The attorney drew a draft of the will, which B. retained for some days, and returned with marginal notes, and the attorney drew the will subsequently signed, which not only violated the rule against perpetuities, but made the bequest of income to the children contingent on the trustee's discretion, and postponed the grandchildren's possession of the estate to the time when the youngest grandchild should become of age. This will was sent to testatrix by mail, and was by her executed. There was no proof that she ever read the will, or that it was even read or explained to her, or that she understood its provisions. Held, that it was invalid as a matter of law as not the will of testatrix.

2. SAME — MISTAKE.

Where testatrix instructed B. to have her will drawn, making a certain disposition of her property, and, without her knowledge, B. procured an entirely different will to be drawn by his attorney, which testatrix executed without reading, discussion, or explanation, there was neither mistake of law or fact in its execution so far as testatrix and B. were concerned.

3. SAME — PLEADING — ISSUES AND PROOF.

Where a petition to set aside a will alleged that defendant B. procured the execution of the will through fraud and undue influence practiced on testatrix, and that the instrument was not testatrix's will, and prayed the framing of an issue as to whether or not the instrument was testatrix's last will, proof that B. procured testatrix to execute a will containing a disposition of her property differing from that which she intended was not unavailing because the petition did not charge that testatrix instructed B. to have the will drawn so as to dispose of her property in a certain manner, and, that, in violation of such instructions, he procured the execution of a different will.

4. SAME — NATURE OF PROCEEDING.

A will contest is a proceeding in rem.

5. SAME — BURDEN OF PROOF.

In a will contest, the affirmative of the issue rests on the proponents to establish the execution of the will and testator's mental capacity.

6. SAME — DISMISSAL — VOLUNTARY NONSUIT.

In a will contest, the court is required to take proof and either establish or reject the will; contestants not being entitled to take a voluntary dismissal or nonsuit.

7. SAME — RELATION OF TRUST — ABUSE — BURDEN OF PROOF.

Where testatrix, a weak, delicate, and aged woman, requested defendant B. to see to the preparation of a will for her, in which B. was to act as trustee in order to dispose of the property in a particular manner, and the will executed did not make such disposition, a relation of trust and confidence existed between testatrix and B., which shifted to him the burden of proof, not only that testatrix had an opportunity of reading the will before she signed it, but that she read it and understood its provisions and the disposition effected thereby, and that she acted freely of her own volition without fraud and undue influence.

8. PERPETUITIES — TESTAMENTARY PROVISIONS.

Where a will bequeathed testatrix's property in trust to pay such portion of the income to testatrix's children during their lives, as B., the trustee, in his discretion might elect, and to pay to testatrix's grandchildren after the death of their parents so much of the income of their parent's share as B. should elect, and to pay the remainder to such grandchildren after the youngest grandchild became of age, it was void as violating the rule against perpetuities.

In Banc. Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Will contest by Frank E. Bradford and others against H. A. Blossom and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed and remanded, with directions.

See 88 S. W. 721.

This is the second appeal of this case to this court. The opinion delivered on the former appeal was written by Burgess, J., and is reported in 190 Mo. 110, 88 S. W. 721. It originated in the circuit court of the city of St. Louis, and was instituted to contest the validity of the last will of Emma V. Bradford, who departed this life on July 28, 1898. The will bears date July 21, 1893, and was duly probated in the probate court of the city of St. Louis on August 8, 1898, and this suit was begun October 10, 1899. The petition for cause of action states that the will was procured to be executed by and through the fraud perpetrated upon and the undue influence exerted over the mind of the testatrix by defendant Howard Blossom. The pleadings are substantially set forth in the former opinion, which fact obviates the necessity of restating them here. While the opinion on the former appeal is very ably and carefully considered, yet the many questions now presented are so radically different from those involved on the former hearing it becomes necessary to restate much of the evidence of the case disclosed by the record, in order that they may be properly understood and intelligently disposed of.

Said will is in words and figures as follows:

"I, Emma Virginia Burns Bradford, widow of the late William E. Bradford, of the city of St. Louis, state of Missouri, being of sound mind and memory and mindful of the uncertainty of life, do by these presents make, publish and declare the following instrument to be my last will and testament hereby expressly revoking all other wills made and published by me.

"I. I declare that I have now living two children: My son, Frank E. Bradford, and my daughter, Carrie Bradford Ryan, wife of Alfred Ryan; that I have no debts or obligations of any character to be allowed against my estate except such as may accrue for my last sickness and funeral, and except such as may be secured on real estate purchased by me, for the deferred payments of the purchase price, for which I have hereinafter made special provisions. And as to all other debts and obligations, I direct my executor named to contest the validity of any claim against my estate which in his opinion is of long standing and supported by doubtful or uncertain evidence.

"It is my will that all of my estate, real, personal and mixed, wherever situate, and to which I am entitled either at law or in equity, vested in me in fee simple, or otherwise, by virtue of any gift, grant, devise, inheritance, or by virtue of any conveyance made to any trustee or trustees for my use and benefit, or under any power mentioned in such conveyance, which authorizes me to appoint, dispose or devise by last will and testament, or any other conveyance in the nature of a last will and testament, any of such property, real, personal or mixed, I do hereby will, devise and bequeath to my friend Howard A. Blossom, said Howard A. Blossom, and to his heirs and assigns.

"To have and to hold the same unto him, the said Howard A. Blossom and to his heirs and assigns forever.

"In trust, however, for the following purposes, to-wit: To deliver to my daughter, Carrie Bradford Ryan, wife of Alfred Ryan, and to my son, Frank E. Bradford, out of my residence such statuary, pictures, laces, jewels, clothing and household goods, of equal value to each of said persons, as they may select; and if my said son and daughter cannot agree upon the articles to be selected by them then said trustee shall decide in all cases of disagreement and shall deliver such property as herein devised and bequeathed to him to said persons, as he may determine.

"And in further trust, as to all other property owned and possessed by me, or to which I am entitled either at law or in equity, to collect and receive all the rents, issues and profits thereof, and to pay all the taxes, assessments, insurance and repairs, and all other expenses which in the discretion of the said trustee may be deemed proper and expedient to be incurred in holding, managing, controlling and disposing of said property; and to pay out of said income (or the principal, if necessary,) so held by said trustees, any sum or sums of money that may be recovered by any action at law or suit in equity against said trustee, by any person or persons whomsoever, for any damages or injuries sustained by any person or persons by reason of any act done, or the omission of any act, by the said trustee, by which any cause of action for any injury or damage shall result, and for which any person or persons may be entitled to recover against said trustee for such injuries or damages. And from the net income thereof, after the payment of all such sums required herein to be paid by said trustee, to divide the said income into two equal parts; to suffer and permit my son Frank to use and enjoy so much of the one part of the said net income for and during his natural life as my said trustee may deem proper to pay him, such payment to be made to him in such sum or sums and at such time or times as said trustee may determine, paying the same into his own hands and taking his receipt therefor. And from the other part of said income to suffer and permit my daughter Carrie to use and enjoy so much of said part of said net income, for and during her natural life, as my trustee may deem proper to pay her, such payment or payments to be made to her in such sum or sums and at such time or times as said trustee may determine, paying the...