Burton v. Holman
| Decision Date | 26 May 1921 |
| Citation | 231 S.W. 630,288 Mo. 70 |
| Parties | MARY H. BURTON v. H. FRANK HOLMAN, Administrator, et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Randolph Circuit Court. -- Hon. A. W. Walker, Judge.
Affirmed.
J. H Whitecotton, M. J. Lilly, W. B. Stone and Edmund Burke for appellant.
(1) The testimony of Wisdom Burton and other witnesses' testimony as to transactions had by Dr. Dinwiddie with and for Martha Harlow was incompetent and tended to prejudice the jury against him and was offered for that purpose only. (2) The instruction asked at the close of the plaintiff's case in chief should have been given for the reason, that there was no substantial testimony tending to prove "mental incapacity," or the exercise of "undue influence," one of which must have been proven in this case or the instruction should have been given. Undue influence means such influence as amounts to over-persuasion coercion or fraud, destroying the free agency and will power of the testator. Martin v. Bowden, 158 Mo. 392; Tibbs v. Kamp, 154 Mo. 579; Sehr v Linderman, 153 Mo. 289; Campbell v. Carlisle, 162 Mo. 647. (a) Also affirmative proof of such undue influence is required to be made either by direct facts shown or such facts and circumstances as from which undue influence naturally results as a reasonable and fair inference, and not as mere conjecture. Tibbs v. Kamp, 154 Mo. 579; Campbell v. Carlisle, 162 Mo. 647; Weber v. Strobel, 236 Mo. 663. (b) Influence gained by kindness and affection will not be regarded as "undue," if no imposition or fraud be practiced. Weber v. Strobel, 235 Mo. 664; Gordon v. Burris, 141 Mo. 616; In re Small, 105 A.D. 141. (3) Instruction No. 1 asked by the defendants should have been given. There was neither an allegation in the petition making "mental incapacity" a ground for contesting the validity of the will. Neither was there any proof offered that tended to prove the same had it been alleged. "Mental incapacity" not being charged as a ground and no proof made, the court should have given this instruction as said by this court in a similar case (Byrne v. Byrne, 250 Mo. 542): "At most this petition charges mental and physical weakness as tending toward producing a mind that could be more easily influenced." To make the matter worse the court not only refused this instruction but gave one asked by the plaintiff making mental incapacity an issue. Both actions of the court were under the pleadings and the evidence prejudicial error. Byrne v. Byrne, 250 Mo. 632; Coherly v. Donovan, 208 S.W. 53, 204 S.W. 730. (a) Instruction marked "D," should not have been given, for the reason that it submits an issue neither in the pleadings nor supported in the least by the evidence. It is also objectionable for the further reason that it is conditioned on undue influence of Dr. Dinwiddie, or anyone acting for him without any proof whatever in the case as to the fact of anyone acting for him. It is purely speculation and is therefore, prejudicial to defendants. (b) Instruction marked "E," should not have been given, for the reason there was no substantial evidence on which to base such an instruction. (c) The court having given an instruction submitting to the jury both the question of "undue influence" and "mental incapacity" should have given defendants' instruction numbered 3, and it was reversible error to refuse it. (4) The trial court should have granted the defendant a new trial because of the aforesaid errors committed by the court, and for the further reason, that there was no substantial testimony to support the verdict of the jury, on either "mental incapacity" or "undue influence." There must be substantial testimony in the case to support the verdict or the court should have granted a new trial; and this court in the case of a refusal of the trial court to so act will reverse the judgment. Naylor v. McRuer, 248 Mo. 423; Major v. Kidd, 261 Mo. 607; Kleinlein v. Krauss, 209 S.W. 933; Norton v. Paxton, 110 Mo. 461; Teckenbrock v. McLaughlin, 209 Mo. 538; Sayre v. Princeton University, 192 Mo. 120.
Willard P. Cave for respondent.
(1) The testimony of Wisdom Burton is entirely competent, and there is nothing there to indicate that the questions were in any way improper. (2) The instruction asked by defendant at the close of plaintiff's case in chief, was properly refused, it being an instruction in the nature of a demurrer to the evidence, as there was a sharp issue of facts made in the case. (a) Furthermore in cases where undue influence is charged, and the facts are undisputed, that the defendant, Dinwiddie, was not only the confidential advisor and agent of the deceased, but also was her family physician and treated her professionally at the time, and immediately before the alleged will was made, under the laws of this State, the burden of proof is cast upon such person occupying a confidential relationship to a deceased to disprove the fact of undue influence. Hall v. Knappenberger, 97 Mo. 509; Dausman v. Rankin, 189 Mo. 677; Cornet v. Cornet, 248 Mo. 234; Mowry v. Jarman, 204 Mo. 173; Byrne v. Byrne, 250 Mo. 632; Sittig v. Kersting, 223 S.W. 742. (3) Instructions prayed for by plaintiff and given by the court, numbered A, B, C, D, E, F, G and H, are all correct declarations of the law.
RAILEY, C. White and Mozley, CC., concur.
This suit was commenced by plaintiff, in the Circuit Court of Randolph County, Missouri, on August 9, 1918, in vacation, to contest the will of her mother, Martha Harlow, a resident of said county, who died about April 26, 1918. The will was duly probated in said county, and is set out in the abstract of record. The executor named in the will, and the heirs of testatrix having refused to administer upon said estate, the Probate Court of Randolph County, on May 8, 1918, appointed defendant, H. Frank Holman, public administrator of said county, to take charge of the estate, and he is now the acting administrator of said estate. The other defendants are designated as beneficiaries in said will.
The controversy, as presented in the petition, is clearly stated in respondent's brief, as follows:
"The entire gist of the action is alleged to be undue influence exercised by the principal defendant, Dr. T. H. Dinwiddie, who was the practicing physician and trusted confidential advisor of the deceased, Martha Harlow."
Appellants state the issues involved, as follows:
"The petition, while being very verbose, bases its right to set the will aside on undue influence only."
The answer of the real defendants, Dinwiddie and the trustees of the Baptist Church of Higbee, is a general denial of undue influence.
The testatrix, Martha Harlow, was the widow of John F. Harlow, who died about 1898, while living at Higbee in said county. Plaintiff is the only child of testatrix and John F. Harlow.
The will in controversy is dated April 4, 1903. By the third and seventh paragraphs of the will, plaintiff was given $ 500, and the household and kitchen furniture left by her mother. The eight paragraph of said will reads as follows:
"I will, devise and bequeath to T. H. Dinwiddie, Lots Nine (9) and Ten (10) in Block One (1), in Owen's Division of Higbee, in Randolph County, Missouri, to have and to hold in fee simple forever, and I also will and bequeath to said T. H. Dinwiddie the sum of One Thousand Dollars."
The evidence tends to show, that testatrix was about 76 or 78 years old when the will was made on April 4, 1903.
Respondent contends, that the estate left by testatrix was of the value of $ 6,500 or $ 7,000. Appellants contend, that it was worth about $ 7,300. The latter amount is named as the value by Wisdom Burton, one of plaintiff's witnesses.
The will, after providing for the payment of testatrix's debts, and the other bequests mentioned, left the remainder of her estate to James E. Rucker and John H. Botts, as trustees of the Baptist Church of Higbee, Missouri.
As appellants are insisting that the cause should be reversed with instructions to sustain the will, in order to avoid repetition, we will consider the evidence on the merits, the instructions and the rulings of the court, in the opinion.
The jury returned a verdict rejecting the will; judgment was entered in due form on the verdict; appellants, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled and they duly appealed the cause to this court.
Counsel for plaintiff, in his opening statement to the jury, after calling attention to the testimony which would show Dr. Dinwiddie was the family physician of testatrix and was her confidential business advisor, said:
"If we show you these, then we say we do not think there will be any lingering doubt in your mind that this will was procured by the undue influence of the defendant Dinwiddie." (Italics ours.)
Counsel for appellants, after stating to the jury their theory of the case, said:
(Italics ours.)
In appellants' original brief, it is said:
"The petition, while being very verbose, bases its right to set the will aside on undue influence only." (Italics ours.)
In appellants' reply brief, it is said:
"It is admitted by the respondent that this action is based upon the exercise of undue influence by Dr. Dinwiddie over the mind of...
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