Bridwell v. Swank

• Decision Date: 31 October 1884
• Parties: BRIDWELL et al., Appellants, v. SWANK et al.
• Court: Missouri Supreme Court

84 Mo. 455

BRIDWELL et al., Appellants,

v.SWANK et al.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Mississippi Circuit Court.--HON. J. D. FOSTER, Judge.

AFFIRMED.

H. C. O'Bryan for appellants.

Kate Lee having executed the alleged will, and died in 1878, and the descent being cast under Wagner's Statutes (Edition of 1870), that statute must govern in the determination of the issues in this cause. In the determination of this cause, the jury manifestly disregarded the testimony and instructions of the court. Such being the case, the Supreme Court will interfere and reverse the judgment. Ackley v. Staehlin, 56 Mo. 558; State ex rel. Nicholson v. Rombauer, 44 Mo. 595; State v. Burnside, 37 Mo. 343. It is charged in appellant's petition, confessed in respondent's answer and proven on the trial, that at the time of the execution of the alleged will and death of Kate Lee, that she was unmarried and under twenty-one years of age, viz., nineteen years of age; therefore, said alleged will was void, in so far as the lands are concerned, on account of non-age. Secs. 1, 2, p. 1364, 1 Wag. Stat., Edition of 1870. Caho v. Endress, 68 Mo. 223, 227. The verdict and judgment in this cause being based on the issues properly made by pleading, whether or not the paper writing was the will of Kate Lee, the judgment operates on the title of the lands, notwithstanding the instruction given by the court, on its own motion, that the lands were not involved in the controversy, and the verdict and judgment is, therefore, radically wrong. It is confessed in respondent's pleadings, that Wm. P. Swank was the guardian, and that Margaret H. Swank, his wife, who is devisee, in the alleged will, was standing in relation of quasi guardian to said Kate Lee; that she lived in the family; that the relation had not been severed; no final settlement made; that the alleged will was executed during last sickness, etc. It is recited in the alleged will by Kate Lee that she gave the residue and remainder of her property, both real and personal, in Missouri and Kentucky, to Margaret H. Swank, as a slight testimonial for her kindness and untiring care and attention to her during her sickness for the last six months. It is also proven by testimony of Bethune and Simpson, that Kate was displeased with the infant appellants. All of these facts are conclusively proven or confessed. Such being the case, the alleged will, as a matter of law, is void. Secs. 317, 318, 319, 320, pp. 312 and 313, 1 Story's Equity Jurisprudence (12 Ed.); Garvin's Adm'r v. Williams, 44 Mo. 465; Garvin's Adm'r v. Williams, 50 Mo. 206. The alleged will only created a general estate in Mrs. Swank to the lands, therefore Wm. P. Swank, the guardian of Kate Lee and husband of the devisee, had the right of use and possession. Bartlett v. Donohoe, 72 Mo. 563; Wilson v. Garaghty, 70 Mo. 517; Hunt v. Thompson, 61 Mo. 148; Cooper v. Ord, 60 Mo. 420; Boal v. Wagner, 46 Mo. 48. The alleged will is therefore void. Sections 317, 318, 319 and 320, pages 312 and 313, 1 Story's Eq. Jur. (12 Ed.); Garvin v. Williams, 44 Mo. 465. The evidence as to the treatment of testatrix by appellants, was hearsay and irrevelant; so also the statements of witnesses with reference to the education and intelligence of the testatrix were irrelevant, misleading, and improper. As the contest brought the cause from the probate to the circuit court, it was in effect an appeal. Lamb v. Helm, 56 Mo. 432; Benoist v. Murrin, 48 Mo. 48. The action of the court in overruling appellants' objection and admitting as testimony the affidavit made by Bethune and Simpson before the probate court, and the order of the probate court probating said alleged will was illegal, and calculated to mislead the jury. The second instruction given for defendant was improper. 1 Story's Eq. Jur., secs. 319, 320; Garvin v. Williams, 50 Mo. 206, and 44 Mo. 465.

Smith & Krauthoff and R. A. Hatcher for respondents.

(1) The legal presumption of constructive fraud, which is claimed arose in this case because of the fiduciary relation between the testatrix and W. P. Swank, is completely overturned and rebutted in the testimony. Besides it must be borne in mind that Swank was not a guardian but only a curator of the estate of the deceased, and whether the one or the other he was not named as beneficiary in the will. The beneficiary, while the wife of the guardian curator, was the aunt of the testatrix, who no doubt was bound to her by the strongest ties of affection. The case, in its facts, is to be distinguished from the Garvin case, cited by appellants. (2) The second instruction given for plaintiffs by the trial court, plainly told the jury that if the relation of guardian and ward existed between Swank and Kate Lee at the time she executed the will making her aunt the chief beneficiary therein, that the law presumed that said will was procured by undue influence. This instruction goes even further than this court went in the Garvin will cases already cited. This instruction, to say the least, embodied the ultima thule of the doctrine of legal presumption arising in a case of this kind, and of which plaintiffs certainly ought not now to complain. The first instruction given by the court below for the defendant contained the appropriate qualification of the distinctive principle asserted in the second instruction given for the plaintiffs; and the two instructions, taken as an entirety, fairly and fully presented the law of the case to the jury. These two instructions, when considered together, are in harmony with the authorities on the subject of legal presumptions arising in cases of this sort. (3) The second instruction given for the defendant, and to which plaintiff makes objection, finds authoritative sanction in the opinion of Judge Napton in the case of Brinkman v. Rueggesick, 71 Mo. 553. The doctrine of the instruction is transcribed verbatim et literatim from the opinion of this court in the case of Turner v. Turner, 44 Mo. 535; Conger v. Douglass, 4 Edw. Ch. 433, 525, 532. (4) By further reference to the fourth instruction asked by plaintiffs and the third instruction asked by defendant, both of which were given by the court, it will appear that the issue submitted to the jury for its consideration was, whether the portion of said will, which contained a bequest of personal property to Margaret Swank, was the will of the testatrix. Both parties, by their instructions, asked the court to restrict the inquiry of the jury into the testamentary capacity of the testatrix with respect to her personal property at the time of the making of her will. It seems to have been conceded all around that the statutory interdict upon the right of the testatrix to dispose of her real estate by will was in force, and operative on her at the time of the making of her will, and the plaintiff had the undisputed possession of the realty. The plaintiffs, as it appears from their brief, are seeking here to ignore the theory upon which they proceeded in the trial of the case in the court below, and to insist upon a reversal upon a point that was ruled in their favor. It seems that they are endeavoring to interpolate into the case in this court an issue which has already been decided for them. No claim is made to the realty under this will, and it being good as to part of the property, it was entitled to probate. And even if it is thought that the judgment of the circuit court is too broad, and that it ought only to establish the will as to the personalty, it can be modified to that extent by this court. R. S. § 3776. Philips v. Stewart, 69 Mo. 149; Morgan v. C. & A. R. R., 76 Mo. 161, 178. (5) The onus probandi was on defendants in the case, and the trial court, so far as we can discover, did not unsoundly exercise its discretion in allowing defendants to introduce their testimony. Benoist v. Murrin, 58 Mo. 307; Tingly v. Cowgill, 48 Mo. 290; Harris v. Hays, 53 Mo. 90.

MARTIN, C.

This is a proceeding under the statutes to contest the validity of a will which had been formally proved in the probate court. The testatrix was a young lady by the name of Kate Lamar Lee, who died of consumption at the age of nineteen at the residence of her guardian, William P. Swank, who was also the husband of her aunt, the principal beneficiary in the will. The contestants are her half-sisters, minor children of the same mother, who had married again after the death of the father of the testatrix. It is alleged in the petition that the testatrix at the time of her decease in December, 1878, was seized of a valuable body of land in Mississippi county, and was possessed of about $1,000 in money; that at the time of the execution of the will, in November, 1878, as well as at the time of her decease in the following December, she resided with her guardian and aunt; that said William P. Swank, as guardian of her person and estate, had not made a final settlement of his trust; that under the circumstances said William a dn Margaret Swank had obtained and exercised an undue influence over the mind of said Kate Lee, and that the paper purporting to be her last will, was not executed by her volition or in exercise of a rational judgment, but from the undue influence of said parties defendant, and further by an impulse of her mind, misled by the undue kindness of the said parties in her last illness; that said defendants, frequently in the last illness of said Kate, importuned her to make a will, and by reason of these importunities and undue influence, prevailed upon her to execute said paper writing and declare it to be her will.

The defendants plead to the allegations of the petition specifically, admitting the date of death, and the seisin of lands and possession of personal property, but denying the value and amount as alleged. It is further admitted that the testatrix was nineteen years of age and unmarried; that William P. Swank was her guardian, and had never made a final...