Canty v. Halpin

• Decision Date: 22 May 1922
• Citation: Canty v. Halpin, 294 Mo. 96, 242 S.W. 94 (Mo. 1922)
• Parties: JOSEPH CANTY et al. v. JULIA HALPIN et al., Appellants
• Court: Missouri Supreme Court

242 S.W. 94

294 Mo. 96

JOSEPH CANTY et al. v. JULIA HALPIN et al., Appellants

Supreme Court of Missouri

May 22, 1922

Appeal from St. Louis City Circuit Court.-- Hon. John W. Calhoun Judge.

Reversed and remanded.

Marshall & Henderson for appellants.

(1) The law in this State as to what constitutes undue influence such as will justify the setting aside of a will, is well settled.Tibbe v. Kamp,154 Mo. 579;Hayes v Hayes,242 Mo. 169;Land v. Adams,229 S.W. 158;Bennett v. Ward,272 Mo. 671.(2)The circuit court erred in refusing to give the instruction asked by defendants at the close of the whole case.If it be possible (which we deny) that the plaintiffs made out a prima-facie case of undue influence, or confidential relation, as shifted the burden of proof upon defendants, still we earnestly submit that defendants fully met the obligations thus cast upon them, and absolutely and completely overcame and disproved every allegation, assertion or presumption of undue influence or confidential relation, and that plaintiffs wholly failed to introduce any evidence whatever in rebuttal or answer to the case made by the defendants, and, therefore, the trial court erred in refusing to give the instruction.(3)The circuit court erred in admitting the testimony of Mary Canty, that she signed the deed, with the other children, conveying to Mrs. Halpin the property she had given to John before his death, upon her mother's oral agreement that when her mother died she(Mary)"would get my share when she made her will," and that she would be treated the same as the other girls.When defendants objected to the testimony because this is not a suit on a contract between the mother and the daughter, the plaintiffs' attorney replied that the testimony was not offered for that purpose, but for the purpose of showing the mental attitude of the mother to the witness.The court overruled the objection, and defendants duly excepted.It needs no argument or citation of authority to show that the ruling of the court was erroneous, and highly prejudicial to the defendants.It does not even tend to show the mental attitude of the mother to the daughter, but if it proves anything it shows a want of confidence of the daughter in her mother, which prompted her to request a contract before she would join in the conveyance from the other children to their mother.(4) It is true, of course, that communications between an attorney and client are privileged.But it is likewise true that communications between an attorney and his client, openly made before a third person, are not privileged.Railway Company v. Yeates,67 Ala. 167;Greer v. Greer,58 Hun, 251.An attorney employed by a testator to write his will is not disqualified from testifying to a confidential communication made in the presence of the subscribing witnesses to the will.In re McCarthy,55 Hun, 7.An attorney at law, the draughtsman of a will, is competent to testify to statements made by the testator in the presence of the attorney and of the subscribing witnesses just before the execution of the will.In re Smith,61 Hun, 101.(5) There was no confidential relation shown in this case between Julia and her mother.8 Cyc. 564.

Glendy B. Arnold for respondent.

(1) Where a confidential relationship has been established, showing a chief beneficiary of the will had control and management of her mother's business and affairs, the law presumes undue influence, and places the burden upon such beneficiary to rebut it.Mowry v. Norman,204 Mo. 173, 223 Mo. 463;Wendling v. Bowden,252 Mo. 647.(2)"Undue influence need not be proven by direct and positive testimony, but it is sufficient if it is shown by, or can be inferred from, the facts and circumstances in evidence."Mowry v. Norman,204 Mo. 193;Coldwell v. Coldwell,220 S.W. 95.(3)"That one claimed to have unduly influenced a testator was not present when the will was drawn and signed did not exclude the idea that undue influence, which was shown to have been previously acquired, was not present or potential at the making of the will."Coldwell v. Coldwell,220 S.W. 95;Mowry v. Norman,204 Mo. 173, 193.(4) The character of the provisions of a will as being just or unjust, reasonable or unreasonable, may be considered by the jury as tending to throw light on the validity of the will.Mowry v. Norman,223 Mo. 463, 470.(5) Declarations and statements of a testator, before or after the making of a will, tending to show the state of his feelings and mind towards disinherited children, or children grossly discriminated against, in his will, are admissible in evidence on the issue of undue influence.Rule v. Maupin,84 Mo. 587;Thompson v. Ish,99 Mo. 160;Bush v. Bush,87 Mo. 480;Crowson v. Crowson,172 Mo. 691;Coldwell v. Coldwell,228 S.W. 95, 104.(6) In a will contest where the plaintiffs make out a prima-facie case of undue influence, the court cannot direct a verdict for the defendants on the ground that defendants' rebuttal testimony is uncontroverted or unopposed by evidence offered by the palintiffs in surrebuttal.Gannon v. Gas Light Co.,145 Mo. 516;Mowry v. Norman,204 Mo. 173, 191.(7) An attorney is not competent to testify as to what passed between him and his client, a testator, in regard to the making of a will, in contest.Sweet v. Owens,109 Mo. 1;McKee v. Downing,170 Mo. 115.(8) The presence of the attorney's wife, as his assistant, does not lift the veil of secrecy as to communications in her presence between the attorney and his client.

REEVES, C. Railey and White, CC., concur.James T. Blair, C. J., and Elder, J., concur in the result.

OPINION

In Banc.

REEVES C.

-- This is an action to contest the will of Margaret E. Halpin.The issue of testamentary incapacity was eliminated by the trial court, and the contest both below and here is over the question of undue influence.The contestants are Mary Canty and Jennie Boeckmann, their husbands, and the three minor children of Mrs. Boeckmann.The contestees are Julia Halpin and Kate Halpin and, with the first two named contestants, are the only surviving children of the said Margaret E. Halpin.

Mrs. Halpin died on July 22, 1919, and this suit was instituted in the Circuit Court of the City of St. Louis on August 9, 1919.The will in controversy was alleged to have been executed on January 22, 1914, and was probated August 5, 1919.Contestee, Julia Halpin, was the chief beneficiary under said will, and the petition charges that she, occupying a confidential and fiduciary relationship to her mother, the testatrix, exercised an undue influence over her in the execution of said will.

The contestees properly assumed the burden of proof in the first instance, and made their prima-facie case by showing the due execution of the will and that testatrix was then of sound mind.[Teckenbrock v. McLaughlin,209 Mo. 533, l. c. 539, 108 S.W. 46, and cases cited therein.]Thereupon contestants offered testimony tending to prove an inequality in the value of property devised by the will to the contestants and contestees, such value being greatest in the property devised to Julia Halpin.

Mary Canty and Jennie Boeckmann, contestants, daughters of the testatrix, testified that prior to the execution of the will Julia "looked after the property, the repairs and troubles of real estate agents, tenants and matters of that sort, and she was supposed to do the banking business for our mother;" that testatrix "asked nobody but Julia" about her business affairs; that Julia attended to the property of testatrix, looked after it, gave orders and attended to everything.The testimony further tended to show that testatrix, during that time and thereafter, was a large woman with poor eyesight and with physical infirmities, but with good mind, and that she always signed the checks, though Julia looked after the collection of moneys arising from rentals on much real estate owned by her, and that Julia deposited such receipts in the bank to the credit of her mother.The property of testatrix consisted mainly of residence properties in the city of St. Louis, and during her lifetime she conveyed separate parcels of said properties, but not all, to her daughters, both contestants and contestees, and that such conveyances covered property mentioned in the will, but were not made contrary to the terms of the will, but in pursuance thereof, merely anticipating its utility for the same purpose.

Several years prior to the execution of the will contestantsMary Canty and Jennie Boeckmann had married and lived apart from testatrix.Julia and Kate remained unmarried and lived with testatrix.There was testimony tending to show that Julia supervised all of the business of testatrix, both before and after the execution of the will, and that she was "boss" of her mother's household, and that testatrix stood in awe of her.Contestees offered an abundance of testimony tending to disprove the allegations of the petition and in contradiction of the evidence of contestants.

The attorney, who drew the will, at the instance of contestants was not permitted to testify to any communications made to him by testatrix concerning it.Upon the issue submitted, namely, of undue influence, the jury found "that the paper writing produced and read in evidence was not the will of Margaret E. Halpin deceased."After an unavailing motion for a new trial, contestees have duly prosecuted their appeal to this court, complaining that the question involved should not have been submitted to a jury; that they were injured by certain harmful evidence; that the court rejected competent and material evidence offered by them, and that the jury was confused by misleading instructions.Other facts will be noted in the course...