Campbell v. Carlisle

• Decision Date: 11 June 1901
• Parties: CAMPBELL et al. v. CARLISLE et al.
• Court: Missouri Supreme Court

63 S.W. 701

162 Mo. 634

CAMPBELL et al. v. CARLISLE et al.

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

WILLS — EXECUTION — UNDUE INFLUENCE — PROBATE OF WILL — BURDEN OF PROOF — SUFFICIENCY OF EVIDENCE.

1. A proponent is only required to show that a will was not procured through fraud or undue influence in cases where there is a confidential relation between the testator and a beneficiary, and the will excludes the natural objects of testator's bounty.

2. The fact that testator, who had no wife or children living, was over 90 years old, and sick and infirm, at the time of making his will, and was being waited on and cared for by persons not related to him, and to whom he devised most of his property, though they expected to receive compensation for such services, and that the will expressed confidence in such persons, and named one as executor, does not show such a confidential relation as will require the proponent to show the absence of undue influence.

3. The prior release of a debt owing testator from such beneficiaries cannot be considered as showing a confidential relation existing between the parties at the time of the making of the will.

4. The rule that influence over testator, acquired by kindness and care, will not constitute undue influence sufficient to avoid the will, is not confined to relatives of testator, but also applies to his friends.

5. A will will not be set aside for undue influence, unless there is some act or importunity which the testator was unable to resist.

6. Testator, who was 90 years old, sick, and infirm at the time of making his will, though in full possession of his mental faculties, had no relatives nearer than a sister, and was living with beneficiaries not belonging to his family, who were kind and attentive to him, though they expected to receive pay therefor. The testator devised a large portion of his estate to such beneficiaries, and they procured the attorney who wrote the will, and one was appointed executor. Held insufficient to show undue influence sufficient to avoid the will.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Proceedings by Susan Campbell and others against W. T. Carlisle and others to contest the will of John Carlisle, deceased. From a judgment sustaining the will, the contestants appeal. Affirmed.

W. M. Williams, C. B. Sebastian, and Webster Gordon, for appellants. Odon Guitar, Wm. R. Gentry, N. T. Gentry, and Wellington Gordon, for respondents.

BURGESS, J.

This is a statutory contest of the will of John Carlisle, deceased. The will was executed on the 23d day of May, 1894, and admitted to probate in Boone county, where the testator died, on the 20th day of October, 1894, and letters granted to Thomas H. Carroll, the executor named in the will, in November, 1894, who, as such executor, took charge of the estate. The suit is being prosecuted by the sister and other near relatives of the testator, who allege in the petition that at the time of the death of the testator he owned personal and real property of the value of about $20,000, a large portion of which was, by the will, given to persons who were of no kin, and had no claim upon the bounty, of the testator. It further alleges that the testator, at the time of making the pretended will, was an old man; that his mind had become impaired by disease and the effect of medicine; that he was incapable of making a will; and that the making and publication thereof was procured by the defendants Thomas H. Carroll and Bettie W. Carroll by fraud, artifice, and undue influence, which they exercised over the deceased, and that it is not his will. The answers were general denials, and affirmed the validity of the will. The portions of the will that have any bearing upon the issues involved are as follows: "Item 1. I give and devise to my sister Susan Campbell, of Benton county, Arkansas, three lots in Rogers, Arkansas, each lot containing one acre, more or less, and known as the `John French Property,' and situated near the college. I also give to my said sister the sum of three hundred dollars in money ($300.00). Item 2. I give and bequeath to Mary Eliza Harrison, daughter and only child of my sister Mahala Harrison, deceased, the sum of three hundred dollars in money. Item 3. To the five children of my brother Thomas Carlisle, deceased, late of Gallatin county, Ky., I give and bequeath the sum of one hundred dollars each ($100.00). Item 4. To the children of my deceased sister Mrs. Sallie Griffin, late of Gallatin county, Ky., I will and bequeath the sum of five hundred dollars ($500.00), which sum I want to be equally divided among them, share and share alike. Item 5. I have not heard from my brother Daniel Carlisle since 1852. He was then living in Sacramento, Cal. If he is still living, I give to him the sum of five hundred dollars ($500.00), but, if he is dead, I want said five hundred dollars ($500.00) to be equally divided among his heirs. Item 6. To Mrs. Ann Wregg I give and bequeath the sum of sixteen hundred dollars. She was a sister of my first wife, and is now living in Georgetown, Scott county, Ky. I desire that this money be paid to her by my executor, and, if any of it is left after her death, I want the same divided equally among her daughters, viz. Emma, Huldah, Lula, Bettie W., and Fannie. Item 7. After paying all my just debts and funeral expenses, and also putting up a suitable monument over my last resting place and the graves of my two wives, I desire that my executor divide equally the residue of my estate among the following: The children of my brother Thomas Carlisle, the children of my sister Sallie Griffin, the children of my brother Daniel Carlisle, my sister Mrs. Susan Campbell, Mary Eliza Harrison, daughter of my sister Mahala Harrison, deceased, and the above-named children of Ann Wregg, Emma Wregg, Huldah Kelley, Lula Wregg, Bettie W. Carroll, and Fannie Ammerman. Item 8. I hereby nominate and appoint my trusted friend Thomas H. Carroll as my sole executor, and, in consideration of the confidence that I have in his business ability and in his honor, his honesty and his integrity, I request that he be required to give bond and security for only two thousand dollars ($2,000.00). My estate is worth much more than that amount, but I know Carroll, and I am sure he will attend to it right, as he has attended to my business for a good long time. I request that my executor see that my body is buried to the left of where my wife Myra is buried, and that he also see that the remains of my first wife are moved, and placed to the left of where I rest. It is my desire that we all three shall be buried in the Columbia Cemetery, and I want my executor to see to erecting the tombstones." At the time of the execution of the will the testator was of the advanced age of about 90 years. He was unable to read or write, yet he had been quite successful in the accumulation of property and money. He was crippled, in bad health, and infirm, but not more so than might be expected of one of his years. While for several years prior to his death he did not give personal attention to all of his business, he looked to see that those with whom he trusted it attended to it properly. There was evidence tending to show that he was easily influenced, susceptible to kind treatment, and trusted implicitly in those who treated him kindly and showed him favor and attention. In about 1890 he went to live in Rogers, Ark., and left his nephew J. W. Carlisle, of Columbia, Mo., in charge of his business. He remained in Rogers until 1893, when he returned to Columbia, stayed a short time with his nephew J. W. Carlisle, and went over his business with him. At this time the defendants Thomas H. and Bettie Carroll owed him a note, which amounted to about $3,200, secured by a deed of trust on their farm. They had failed to pay the interest, and he insisted on the payment of the note. They were unable to pay it, and he spoke of selling them out. He then went to his farm, which was near where Carroll lived, and on the 9th of January, 1894, his wife died. They had no children. After the burial, Mrs. Carroll insisted that he should stay at their house until he could make some other arrangements. He objected, stating that he did not want to go; said that he knew she only wanted to get his money, but that she should never have a dollar of it. But finally she persuaded him to go. He was taken down with pneumonia, and never got away. Shortly after he went to Carroll's, he took his business out of the hands of his nephew J. W. Carlisle, and employed Col. S. Turner. The Carrolls then got him to give up the $3,200 note and deed of trust on their home, and had the same released by deed of release, in consideration that they should support him during his life. Col. Turner insisted that this agreement should be put in writing, which was done. Shortly after this, but not...