Bush v. Bush

• Decision Date: 31 October 1885
• Citation: 87 Mo. 480
• Parties: BUSH et al., Appellants, v. BUSH et al.
• Court: Missouri Supreme Court

87 Mo. 480

BUSH et al., Appellants,

v.BUSH et al.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Marion Circuit Court.--HON. THEODORE BRACE, Judge.

REVERSED.

Smith & Krauthoff and W. P. Harrison for appellants.

(1) The court erred in giving defendants' instruction which was in effect a demurrer to the evidence and a ruling that there was no evidence tending to show testamentary incapacity or undue influence. Buesching v. Gas Light Co., 73 Mo. 219; Frick v. Ry., 75 Mo. 601. A testament made by over importunement is ineffectual. “As if a man make his will in sickness by the over importuning of his wife to the end that he may be quiet, this shall be said to be a will by constraint and shall not be a good will.” 1 Jarmon on Wills (5 Am. Ed. by Randolph & Talcott) 131; 1 Redf. on Wills (4 Ed.) 516; Potts v. House, 6 Ga. 324; Davis v. Calvert, 5 Gill & J. 269; Hall v. Hall, 37 L. J. P. 40; Boyce v. Rossborough, 6 H. L. J. Cas. 2, 49. Undue influence is seldom proved by direct evidence. Tyler v. Gardiner, 35 N. Y. 559; Baker's will, 2 Redf. (Sur.) 179; Young v. Ridenbaugh, 67 Mo. 574; Clark v. Stansbury, 49 Md. 346. The circumstance that those around the testator received all the property and the absent children nothing is entitled to great consideration. Goble v. Grant, 2 Green Ch. 629; St. Leger's Appeal, 34 Conn. 434. (3) It is neither essential nor important that the influence should be exercised at the time when the will is executed. Influence exercised at any time, the effect of which is to produce the will, is sufficient. 1 Redf. on Wills (4 Ed.) 528; Taylor v. Wilburn, 20 Mo. 306; Roberts v. Tranick, 17 Ala. 55. (4) The court erred in excluding the statement of Rosa Bush to Mrs. Baird. Fairchild v. Bascomb, 35 Vt. 398; Robinson v. Hutchinson, 31 Vt. 443; Davis v. Calvert, 5 G. and J. 269; Lewis v. Mason, 109 Mass. 169; Florey v. Florey, 24 Ala. 241; Mullen v. Helderman, 87 N. C. 471. (5) The ruling of the court in excluding declarations of the testator made shortly before and soon after the execution of the will was erroneous. Robinson v. Hutchinson, 26 Vt. 38; Dennis v. Weeks, 51 Ga. 24; Waterman v. Whitney, 11 N. Y. 157; Reynolds v. Adams, 90 Ill. 134; Potter v. Baldwin, 133 Mass. 427; Young v. Ridenbaugh, 67 Mo. 574.

Edward McCabe for respondents.

(1) The declarations of the testator were not competent evidence on the subject of undue influence and as evidence of facts. Gibson v. Gibson, 24 Mo. 227; Cauthorn v. Hayes, 24 Mo. 237; Spoonemore v. Cables, 66 Mo. 579. (2) The testimony excluded, in its utmost scope, would have fallen far short of establishing anything like fraud, or that undue influence which is held sufficient to vitiate a will. Honest and moderate intercession or persuasion or flattery, unaccompanied by fraud or deceit, and when the testator has not been put in fear by the flatterer or persuader, or by his power and dominion over him, will not have that effect. Davis v. Calvert, 5 G. and J. 269; Brown v. Molliston, 3 Whart. 129. (3) The court did not err in excluding the statement of Rosa Bush to Mrs. Baird, for the former is not charged in the petition with having exerted undue influence over her father in procuring the will. (4) The only witness who expressed any doubt as to the testamentary capacity of the testator was J. B. Lewis and this doubt was simply as to capacity to transact ordinary business. This evidence did not warrant the court in submitting the case to the jury.

HENRY, C. J.

This is a proceeding commenced in the circuit court of Marion county to contest the validity of the will of John Bush, deceased. The will was dated October 10, 1876, and a codicil was made January 1, 1877. On the trial, the defendants, proponents of the will, offered as evidence the will and codicil, and proved its execution and attestation by the subscribing witnesses. Also introduced testimony tending to prove testamentary capacity of the testator, and closed.

Plaintiff's testimony disclosed the following facts: That the testator had been married twice, and had five children living by his first wife, and four grandchildren, who were the children of a deceased daughter of his first wife. That at the date of the will, his second wife and three children of that marriage were alive. To each of the children of his first wife, and his grandchildren he bequeathed one dollar, having given to his sons by his first wife each about fifteen hundred dollars and provided for the daughters of that marriage. It appears that the daughter of that marriage, still living, Mrs. Baynum, received from her father at her marriage about fifteen hundred dollars. It does not appear how much he had given the other daughter, Mrs. McWilliams. By the will and codicil in question, all the property he had was given to his wife, but about the time that the will was made he conveyed to Franklin W. Bush, a son of the last marriage, two hundred and forty acres of land in Marion county, worth thirty-five or forty dollars per acre, and to Laura Rush, a daughter by the last wife, a tract of one hundred and eighty-three acres of land in said county, of about the same value as that conveyed to Franklin. It also appears in his will, that, on the day of the date of his will, he had conveyed to Rosa, a daughter of the last marriage, a tract of land, but of what amount or value does not appear. The testimony of Mr. Boulware, the attorney who wrote the will, as to the circumstances under which the will was prepared, is to the effect that on the day the will is dated he was informed that Mr. Bush wished him to call at at his residence. That he called and made a memorandum by which to prepare his will. Witness went there with Dr. Bush, testator's son. No other member of the family was in the room when he first called. Mr. Bush's desire was to make a deed to take effect after his death and had had deeds prepared, but Mr. Boulware explained to him the effect of such a conveyance. He then concluded to make deeds to his children, and provide for his wife by will. Witness made the memoranda. He had expressed his purpose to give his wife the bouse they were residing in and furniture and four thousand dollars. Mrs. Bush, who had come into the room, suggested that instead of four thousand dollars he give her the balance of the estate, and witness then said to Mr. Bush, that as he, Bush, had indicated that the balance would be four thousand dollars, it would be the same thing, and he acted on the suggestion. Mr. Boulware took the memoranda to his office to prepare the will next day, but received information that induced him to prepare the will that night, and it was signed by the testator about eleven o'clock that night.

After the making of the will, about the last of December, 1876, Mrs. Baynum, the testator's daughter by his first wife, went to see her father, who was supposed to be in a critical condition, and stayed there two or three weeks; on the day before the codicil to the will was made, she testified that she and Laura, Rosa and Mrs. Ellis were by Mrs. Bush invited out of the room in which Mr. Bush was confined. It was but a short time after that Laura and Rosa were invited back by Mrs. Bush. Then Mrs. Baynum went to the door to go into the room, but was pushed back by Mrs. Bush and not permitted to enter. The next day Mrs. Bush proposed to Mrs. Baynum that the latter should go to Mr. Whaley's but she said she did not wish to go, but Mrs. Bush and Rosa insisted, and witness went over to Mrs. Whaley's, and spent the day. She again visited her father in May, 1877, and he inquired...