Bradford v. Blossom

• Decision Date: 27 November 1907
• Citation: 105 S.W. 289,207 Mo. 177
• Parties: FRANK E. BRADFORD et al., Appellants, v. HOWARD A. BLOSSOM et al
• Court: Missouri Supreme Court

105 S.W. 289

207 Mo. 177

FRANK E. BRADFORD et al., Appellants, v. HOWARD A. BLOSSOM et al

Supreme Court of Missouri

November 27, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.

Reversed and remanded (with directions).

M. F Hanley, R. P. & C. B. Williams and Thomas B. Harvey for appellants.

(1) Instruction 9 should have been given. The doctrine of this instruction is that if a relation of trust and confidence existed between the testatrix and Blossom at the time of the execution of the will and Blossom received any interest direct or indirect, in the property bequeathed in the will, then a presumption of undue influence arose and unless such presumption has been overcome by rebutting evidence the finding should be against the will. This is undoubtedly the law, and the refusal of this instruction reversible error. Roberts v. Bartlett, 190 Mo. 699; Bradford v. Blossom, 190 Mo. 110; Garven v. Williams, 44 Mo. 465, 50 Mo. 206; Street v. Goss, 62 Mo. 228; Bradshaw v. Yates, 67 Mo. 228; Harvey v. Sullens, 46 Mo. 147; Carl v. Gabel, 120 Mo. 297; Maddox v. Maddox, 114 Mo. 46; Gay v. Gillilan, 92 Mo. 255; Dingman v. Romine, 141 Mo. 466; Bridewell v. Swank, 84 Mo. 455; Barkley v. Cemetery Assn., 153 Mo. 300; Dausman v. Rankin, 189 Mo. 677; Hegney v. Head, 126 Mo. 619. (2) Instruction 16 was erroneous. This instruction assumes that the will was drawn by mistake. Mr. Thompson distinctly testified that the will was drawn exactly like he was told to draw it, and this fact was not denied by Blossom. The fatal vice in the instruction is in assuming that a mistake was made in the drafting of the will, and telling the jury that this is no evidence of fraud or undue influence. Again, the belief of Mr. Blossom as to whether the will was drawn like he instructed it to be drawn is made an element in his exoneration. This was clearly erroneous. Hull v. St. Louis, 138 Mo. 618; Linn v. Massillan, 78 Mo.App. 111; Minnier v. Sedalia, 167 Mo. 99. (3) Instruction 1 under the doctrine of the following case clearly should have been given: Cowan v. Shaver, 197 Mo. 203.

Lehmann & Lehmann for respondents.

(1) The judgment should not be reversed, because there was no error materially affecting the merits of the action, and the right result was reached. R. S. 1899, sec. 865; Norton v. Paxton, 110 Mo. 456; Barkley v. Cemetery Ass'n, 153 Mo. 300; Moore v. Railroad, 176 Mo. 528; Cass County v. Bank, 157 Mo. 133; Couch v. Eastham, 27 W.Va. 796; Barker v. Commins, 110 Mass. 477; Schouler on Wills, 218, 219. (2) The facts do not create a legal presumption of fraud or influence, and at the most only make an issue to be submitted to the jury for their determination. Barkley v. Cemetery Assn., 153 Mo. 316; Berberet v. Berberet, 131 Mo. 410; Campbell v. Carlisle, 162 Mo. 645; Hughes v. Rader, 183 Mo. 630, 710; Aylward v. Briggs, 145 Mo. 613; Doherty v. Gilmore, 136 Mo. 419; Norton v. Paxton, 110 Mo. 467; McFadin v. Catron, 120 Mo. 275; Carl v. Gabel, 120 Mo. 299; Tibbe v. Kamp, 154 Mo. 582; Jones v. Roberts, 37 Mo.App. 163. (3) The instructions given by the court correctly state the law upon the issues of fraud and undue influence. Hughes v. Rader, 183 Mo. 708; Meyers v. Hauger, 98 Mo. 433; Norton v. Paxton, 110 Mo. 456; McFadin v. Catron, 120 Mo. 252; Riley v. Sherwood, 144 Mo. 354; Martin v. Bowdern, 158 Mo. 379; Campbell v. Carlisle, 162 Mo. 634; Crowson v. Crowson, 172 Mo. 691; Sehr v. Lindemann, 153 Mo. 276; Morton v. Heidorn, 135 Mo. 608.

OPINION

In Banc.

STATEMENT.

WOODSON J.

-- 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. 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 28th, 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 that 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.

"II.

"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.

"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 same into her hands and taking her receipt therefor.

"III.

"And in further trust, after the death of the said son Frank, in the event of his marriage and his wife should survive him, to suffer and permit his widow to use and enjoy so much of one-fourth of said net income (i. e., one-half of his share), for and during the period of her natural life, if she shall remain the widow of my son Frank, as my trustee may deem proper to pay her, in such sum and at such times as said trustee may determine, paying the same into her own hands and taking her receipt therefor; and in case of her death or marriage all the share of my said son Frank in such income shall be paid to his child or children as hereinafter mentioned, in the manner hereinafter stated.

"And in further trust, that in case my said...