Canty v. Halpin

Decision Date22 May 1922
Docket NumberNo. 22330.,22330.
Citation294 Mo. 96,242 S.W. 94
PartiesCANTY et al. v. HALPIN et al.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action to contest a will by Joseph Canty and others against Julia Halpin and others. From a judgment declaring the will invalid, contestees appeal. Reversed, and remanded for a new trial.

W. W. Henderson and James P. Magian, both of St. Louis, for appellants.

Glendy B. Arnold, of St. Louis, for respondents.

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 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. Mc Laughlin, 209 Mo. 533, loc. cit. 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 contestants Mary 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 of the opinion.

Opinion.

1. The assignment that the trial court should have sustained appellants' demurrer, offered at the close of plaintiffs' case, cannot be properly urged. The general rule applicable to the state of the record, under such circumstances, is that, by introducing testimony after the instruction in the nature of a demurrer to the evidence has been overruled, the demurrant takes the risk of aiding plaintiffs' case, waives his demurrer, and cannot afterwards be heard to complain of its refusal. Weber v. Strobel, 236 Mo. loc. cit. 660, 139 S. W. 188; Burton v. Holman et al. (Mo. Sup.) 231 S. W. 630, and the cases therein cited.

2. The court properly overruled appellants' request for a peremptory instruction at the close of all the testimony. There was some testimony tending to show undue influence on the part of Julia Halpin over the mind of the testatrix. This was chiefly found in the testimony of Mrs. Boeckmann, who not only testified to a rather helpless condition on the part of testatrix, but that she "was scared to death of that girl," and that Julia would not permit any one to talk business to her mother, and that Julia told witness that she had gotten all she would get of her mother's property, and that she would see to it that witness got no more; that Julia would raise disturbances, and get testatrix excited; and that Julia "beat up" those of the household who did not do her will.

Mrs. Canty testified that "Julia made everybody mind over there"; that she went to her mother's house several times, and "was scared to death to say anything," and that, when she would say something, she was informed that she "had nothing to say"; that she was married, and that she had no business to come there "to say anything"; that it was Julia who thus talked to her, and that on November 30, 1917, witness hired a machine and took testatrix back home after a visit; that when she got there her mother started crying, and that Julia said to her not to get worked up, that she had some insurance papers...

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78 cases
  • Loehr v. Starke, 29670.
    • United States
    • United States State Supreme Court of Missouri
    • 8 Febrero 1933
    ......Dr. Lebrecht's undue influence was therefore a question for the jury. Heflin v. Fullington, 37 S.W. (2d) 934; Mowry v. Norman, 204 Mo. 191; Canty v. Halpin, 242 S.W. 96; Wendling v. Bowden, 252 Mo. 687; Rayl v. Golfinopulas, 233 S.W. 1072; Clark v. Crandall, 5 S.W. (2d) 385; Moll v. Pollack, 8 ......
  • Pulitzer v. Chapman, 30027.
    • United States
    • United States State Supreme Court of Missouri
    • 10 Julio 1935
    ......Kleinlein v. Krauss, 209 S.W. 936; Bushman v. Barlow, 316 Mo. 948; Downs v. Horton, 287 Mo. 426; Canty v. Halpin, 294 Mo. 137; Denny v. Hicks, 2 S.W. (2d) 144, 222 Mo. App. 1215; Mockowik v. Railroad Co., 196 Mo. 571; Coprincia v. Ins. Co., 218 S.W. ......
  • Look v. French, 36843.
    • United States
    • United States State Supreme Court of Missouri
    • 31 Octubre 1940
    ......703; Teckenbrock v. McLaughlin, 209 Mo. 551, 108 S.W. 51; Hayes v. Hayes, 242 Mo. 155, 145 S.W. 1159; Coldwell v. Coldwell, 228 S.W. 104; Canty v. Halpin, 294 Mo. 96, 242 S.W. 96; Gott v. Dennis, 296 Mo. 66, 246 S.W. 223; Kuehn v. Ritter, 233 S.W. 7; Frohman v. Lowenstein, 303 Mo. 339, 260 ......
  • Crampton v. Osborn, 39937.
    • United States
    • United States State Supreme Court of Missouri
    • 10 Marzo 1947
    ......Hamilton v. Crowe, 175 Mo. 634, 75 S.W. 389; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218; Canty v. Halpin, 294 Mo. 96, 242 S.W. 94; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46; Wigmore on Evidence (3d Ed.), sec. 1790. (7) Declarations ......
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