Carlson v. Lafgran

• Decision Date: 31 May 1913
• Citation: 157 S.W. 555,250 Mo. 527
• Parties: IDA CARLSON et al., Plaintiffs in Error, v. FRED LAFGRAN et al
• Court: Missouri Supreme Court

157 S.W. 555

250 Mo. 527

IDA CARLSON et al., Plaintiffs in Error, v. FRED LAFGRAN et al

Supreme Court of Missouri, First Division

May 31, 1913

Appeal from Lawrence Circuit Court. -- Hon. F. C. Johnston, Judge.

Reversed and remanded.

I. V McPherson, P. H. Harris and Edward J. White for plaintiffs in error.

(1) The court erred in refusing the demurrer asked at the close of the proponents' evidence. (a) There was no proof of testamentary capacity on the part of the alleged testator as required by the statute, R.S. 1909, sec. 535; there was no proof of execution of the will. Cowan v. Shaver, 197 Mo. 208; Cash v. Lust, 142 Mo. 630; Crumm v Crumm, 231 Mo. 626; Gibony v. Foster, 230 Mo 106; Winn v. Grier, 217 Mo. 420. (b) There was no proof of a request expressed or implied by the testator that his will should be attested, and that in pursuance of such request the signatures of the witnesses were affixed to the alleged will in his presence. Hughes v. Rader, 183 Mo. 630; Hach v. Rollins, 158 Mo. 190; Avaro v. Avaro, 235 Mo. 424. (c) The alleged will was unreasonable and unnatural and very slight evidence was sufficient to warrant the conclusion of incompetency or undue influence. Muller v. Hospital Ass'n, 5 Mo.App. 390, 73 Mo. 342. (d) One subscribing witness, Bachland, testified that he could not make him understand the nature of his will, and did not know whether he had explained it to him after he had dictated the will or not. The other subscribing witness, Uttenberg, testified that he did not believe he understood the nature of the will and quoted the Swedish language which he used to say that he had nothing to give away. This witness also stated that after attempting to make the alleged testator understand, Bachland came back and said, "he couldn't make him understand." (e) The deceased was 80 years old, understood the Swedish language, but was unable to read or write English, in which language the will was written. Neither witness to the will testified to any declaration of the decedent, or any act on his part except that of touching the pen, and no declaration in the presence of either witness was testified to, indicating that the deceased knew the contents of the paper or that he intended to execute it as his last will, but all the evidence taken together proves the deceased was ignorant of the nature of a will. This instrument fixed up in such a manner and under such conditions was not the legal will of the alleged testator. Mittenberger v. Mittenberger, 78 Mo. 29; 1 Redfield on Wills, p. 534; 1 Jarman on Wills, 64. (2) The court erred in giving instructions 1 and 2 on behalf of the proponents. The first instruction submitted the case to the jury as though the attesting witnesses had ascertained that the deceased had sufficient intelligence to understand the act he was performing, the property he possessed, the disposition he was making of it, and the persons and objects he was making the beneficiaries of his bounty; whereas, the evidence of the two attesting witnesses, and all the others present when the alleged will was executed, was directly to the contrary. The second instruction was predicated upon the theory that the deceased had himself sent for the subscribing witnesses, and that the will had been read over to the testator before he signed it, or made his mark; whereas, the uncontradicted evidence was that the will was not read over to the testator in the Swedish language at all, but was only read over by the scrivener, in the English language, and that the testator could not understand the English language at all, and that he had not sent for these persons to witness his will because he was ignorant of the nature of a will. Both of these instructions, therefore, were based upon conditions not shown to exist in the concrete case before the court and hence were clearly error, because there was no evidence upon which to base them. (3) The court erred in refusing the plaintiff's instruction numbered eight. The plaintiffs' instruction 8 was based upon the undue influence of the defendant, Fred Lafgran, a stranger to the deceased, who went to his little home after his wife's death and loaded him into a wagon and took him to his house a week or so before he died. The evidence was to the effect that he had importuned the deceased in a threatening manner to leave him his property in consideration of his taking care of him until he died, and he was then in a helpless and hopeless and dying condition. This was sufficient evidence to base the instruction upon, and it should have been given. The evidence showed a confidential relation existed between Fly and testator and between the testator and Lafgran. Campbell v. Carlisle, 162 Mo. 634.

Wliliam B. Skinner for defendants in error.

(1) When a will is contested it devolves upon the proponents to prove its execution and that the testator was of the requisite age and sane. This makes a prima facie case and it then devolves on the contestants to establish his incompetency and undue influence. By competency to make a will is meant intelligence sufficient to understand the act he is performing, the property he possesses, the disposition he is making of it and the persons or objects he makes the beneficiaries of his bounty. Imperfect memory caused by sickness or old age, forgetfulness of names of persons he has known, idle questions, or requiring a repetition of information will not be sufficient to establish incompetency, if he has sufficient intelligence to fulfill the above definition. Sehr v. Lindemann, 153 Mo. 276; Winn v. Grier, 217 Mo. 446; Hughs v. Rader, 183 Mo. 630; Gibony v. Foster, 230 Mo. 131. (2) Where the evidence showed that witnesses are present for the purpose of attesting a will, that the will is prepared in the presence of the testator, that it is read to him and he signed it, and it is then passed to a table in the same room, and there, in the presence of the testator and of each other, the witnesses sign it, such acts constitute, in effect, a request from the testator to sign it, and the mere fact that one of the beneficiaries requested the attendance of the witnesses, and that the testator does not proclaim the paper to be his last will and testament, nor verbally request the witnesses to attest it, are not sufficient to annul the will on ground of non-compliance with the statute. Hughes v. Rader, 183 Mo. 630; Martin v. Bowdern, 158 Mo. 389; Schierbaum v. Schemme, 157 Mo. 1. (3) "There is not much contrariety of opinion in the courts as to what constitutes undue influence, such as will vitiate a will. It must constitute an influence exerted male fide to produce a result which the party, as a reasonable person, was bound to know was unreasonable and unjust, and it must have the effect of producing illusion or confusion in the mind of the testator, so as to either overcome free agency, or power of judging upon the true relationships between himself and those who might be supposed to have just claims upon his bounty. It must not be such as arises from influence of gratitude, affection or esteem, but it must be the control of another will over that of the testator, whose faculties have been so impaired as to submit to that control, so that he has ceased to be a free agent, and has quite succumbed to the power of the controlling will." Carl v. Gabriel, 121 Mo. 296; Campbell v. Carlisle, 162 Mo. 646; Hughes v. Rader, 183 Mo. 633. "In order to authorize the submission of the question of undue influence to the jury there should be at least some substantial and satisfactory proof that the will was procured by coercion and importunity which could not be resisted and that by such coercion and importunity the execution of the will was procured." Winn v. Grier, 217 Mo. 460. "The influence denounced by the law must be such as amounts to overpersuasion, coercion or force, destroying the very agency or will power of the testator and substituting therefor the will of another." Hughes v. Rader, 183 Mo. 633. "Influence gained by kindness and affection will not be regarded as undue, if no imposition of fraud is practiced, even though it induce the testator to make an unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made." Campbell v. Carlisle, 162 Mo. 647. "It would be a great reproach to the law, if, in its jealous watchfulness over the freedom of the testamentary disposition, it would deprive age and infirmity of the kindly ministrations of affection, or the power of rewarding those who bestow them." Campbell v. Carlisle, 162 Mo. 647.

BLAIR, C. Brown, C., concurs. Woodson, J., concurs in the result.

OPINION

BLAIR, C.

This is a proceeding instituted by the heirs at law of Nels Johnson to contest the validity of an instrument purporting to be and duly probated as his will. From a verdict and judgment for proponents plaintiffs appealed.

The petition alleges that (1) Johnson lacked testamentary capacity, (2) the will was the product of undue influence and (3) Johnson did not understand English and did not sign the instrument "as and for his will, understanding and knowing the terms and contents thereof."

On the trial there was ample evidence warranting a verdict in favor of the will, but there was also evidence for plaintiffs tending to prove the allegations of the petition.

The principal question presented concerns the correctness of instructions given for proponents, as follows:

"Gentlemen of the Jury: (1) If you find and believe from the evidence that the instrument of writing mentioned in the petition and offered and read in evidence in this case was signed by Nels Johnson by making his mark thereto, as his will, in the presence of two witnesses and that the...