Clark v. Powell

• Decision Date: 01 November 1943
• Docket Number: 38179
• Citation: 175 S.W.2d 842,351 Mo. 1121
• Parties: Ida Clark and Angus Turpin v. Pat Russell Powell and Nancy Powell, Appellants
• Court: Missouri Supreme Court

175 S.W.2d 842

351 Mo. 1121

Ida Clark and Angus Turpin v. Pat Russell Powell and Nancy Powell, Appellants

No. 38179

Supreme Court of Missouri

November 1, 1943

Rehearing Denied December 6, 1943.

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge.

Affirmed.

Ira H. Lohman, Ralph Alexander and Sam W. James Jr. for appellants.

(1) It is fundamental that evidence in a suit over a will, as in all other actions, must be relevant to the issues; and that matters that throw no light whatever on the controversy should be excluded. Adams v. Kendrick, 321 Mo. 310 11 S.W.2d 16. (2) The improper references made by the attorneys for the respondents, and the evidence introduced by the respondents as to the fees charged or to be charged by Mr. James for services rendered in the administration of the estate of Virlea Heariold, deceased, and in the will contest case, and relative to his representing Mr. Powell as administrator and in drafting the will should have been excluded. Shelton v. McHaney, 338 Mo. 749, 92 S.W.2d 173. (3) The rule is well established that nonexpert witnesses must state facts, and mere conclusions do not rise to the dignity of evidence. Scanlon v. Kansas City, 28 S.W.2d 84, 325 Mo. 125; Schmidt v. Pitluck, 26 S.W.2d 859; Masonic Home of Missouri v. Windsor, 92 S.W.2d 713, 338 Mo. 877; 32 C. J. S., sec. 438, p. 70; sec 444, pp. 72-73. (4) The testimony of Edna Richardson, and Lease Ford, as to statements claimed to have been made by the testator relative to the disposition to her property, in support of plaintiffs' allegation of undue influence, are further objectionable as contradicting the written terms of the will, and are not competent as direct or substantive evidence of the truths of the matters stated. Tingley v. Cowgill, 48 Mo. 291; Hayes v. Hayes, 242 Mo. 155, 145 S.W. 1155; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218; Munday v. Knox, 321 Mo. 168, 9 S.W.2d 960; Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16; Walter v. Alt, 152 S.W.2d 135, 347 Mo. 1201; 79 A. L. R., p. 1449, II "General Rule," and cases cited under Note 9, p. 1451; Webster v. Leiman, 328 Mo. 1232, 44 S.W.2d 40. (5) The court erred in refusing to permit appellants to introduce proper and competent testimony offered in the trial of this cause, and which prejudiced the rights of the defendant. 31 C. J. S., secs. 158, 159, pp. 865-866; sec. 190, p. 913. (6) The burden of proving undue influence upon the testatrix is upon the contestants. Larkin v. Larkin, 119 S.W.2d 351; Rex v. Masonic Home of Missouri, 108 S.W.2d 72, 341 Mo. 589; Kadderly v. Vossbrink, 149 S.W.2d 869; Hahn v. Brueseke, 155 S.W.2d 98. (7) Proof not alone of mere influence, but of undue influence actively operating upon the testator at the time of the execution of the will is necessary to overthrow it. Look v. French, 144 S.W.2d 822, 346 Mo. 972; Larkin v. Larkin, 119 S.W.2d 351; Walter v. Alt, 152 S.W.2d 135, 347 Mo. 1201; Beckmann v. Beckmann, 52 S.W.2d 818, 331 Mo. 133; Gibbony v. Foster, 130 S.W. 314, 230 Mo. 106. (8) Although it is true that undue influence may be inferred from facts and circumstances of the case, there must be substantial evidence from which a reasonable inference of undue influence may be drawn, and mere suspicion is not enough to warrant the drawing of such an inference. Rex v. Masonic Home of Missouri, 108 S.W.2d 72, 341 Mo. 589; Winn v. Matthews, 137 S.W.2d 632. (9) A determination of the exercise of undue influence in procuring execution of will must not rest on mere opportunity to influence or mere suspicion, but there must be evidence of undue influence either in fact or presumptively, and it must not be merely the influence of natural affection. Rex v. Masonic Home of Missouri, 108 S.W.2d 72, 341 Mo. 589; Beckmann v. Beckmann, 52 S.W.2d 818, 331 Mo. 133; Callaway v. Blankenbaker, 141 S.W.2d 810, 346 Mo. 383; Loehr v. Starke, 56 S.W.2d 772, 332 Mo. 131; Hahn v. Brueseke, 155 S.W.2d 98, 107; Walter v. Alt, 152 S.W.2d 135, 347 Mo. 1201; Webster v. Leiman, 44 S.W.2d 40, 328 Mo. 1232. (10) The undue influence that will break a will must be present in active exercise, and rise to the mark of such overpersuasion, coercion, force, fraud or deception, as breaks the will of the testator and puts in its stead the will of another. Walter v. Alt, 152 S.W.2d 135, 347 Mo. 1201; Look v. French, 144 S.W.2d 128, 134, 346 Mo. 972; Callaway v. Blankenbaker, 141 S.W.2d 810, 346 Mo. 383; Larkin v. Larkin, 119 S.W.2d 351; Beckmann v. Beckmann, 52 S.W.2d 818, 331 Mo. 133; Kadderly v. Vossbrink, 149 S.W.2d 869; Hahn v. Brueseke, 155 S.W.2d 98; Webster v. Leiman, 44 S.W.2d 40, 328 Mo. 1232. (11) Mere confidential relationship between testatrix and legatee or beneficiary, if shown, would raise no presumption of undue influence. Clark v. Commerce Trust Co., 62 S.W.2d 874, 333 Mo. 2; Larkin v. Larkin, 119 S.W.2d 351; Loehr v. Starke, 56 S.W.2d 772, 332 Mo. 131. (12) To establish undue influence by fiduciary beneficiary, in execution of will, facts must be shown in addition to fiduciary relation from which it can be fairly and reasonably inferred that such beneficiary actively exercised undue influence in making will. Rex v. Masonic Home of Missouri, 108 S.W.2d 72, 341 Mo. 589; Pulitzer v. Chapman, 85 S.W.2d 400, 337 Mo. 298; Larkin v. Larkin, 119 S.W.2d 351; Odom v. Langston, 152 S.W.2d 124; Walter v. Alt, 152 S.W.2d 135, 347 Mo. 1201. (13) Even fact that beneficiary may look after testator's business and write checks for testator who is illiterate does not establish fiduciary relationship between testator and beneficiary. Larkin v. Larkin, 119 S.W.2d 351; Webster v. Leiman, 44 S.W.2d l. c. 44, 328 Mo. 1232. (14) The fact that a testator disinherits someone who might be considered the natural object of his beneficence is not sufficient alone to prove that his will was the product of improper influence. Look v. French, 144 S.W.2d 128, 346 Mo. 972; Larkin v. Larkin, 119 S.W.2d 351. (15) Undue influence to be effective in breaking a will should be of sufficient potency to destroy the free agency of the testator at the time of making the will. The influence of natural affection is not sufficient. Turner v. Anderson, 236 Mo. 523, 139 S.W. 180; Hall v. Mercantile Trust Co., 59 S.W.2d 664, 332 Mo. 802; O'Reilly v. O'Reilly, 157 S.W.2d 220. (16) Although it is conceded that the most favorable evidence rule applies in will contest cases as in other cases when the sufficiency of the evidence is challenged, nevertheless, in a will contest the proponents' demurrer does not admit forced and violent inferences drawn from the evidence. Walter v. Alt, 152 S.W.2d 135, 347 Mo. 1201; Larkin v. Larkin, 119 S.W.2d 351; Beckmann v. Beckmann, 52 S.W.2d 818, 331 Mo. 133; Odom v. Langston, 152 S.W.2d 124, 347 Mo. 1201. (17) The plaintiffs in this case failed to sustain the burden of proof, and failed to make a case submissible to the jury, and the demurrer should have been sustained. Teckenbrock v. McLaughlin, 108 S.W. 46, 209 Mo. 533, l. c. 551; Loehr v. Starke, 56 S.W.2d 772, l. c. 778, 332 Mo. 131; And cases cited under paragraphs numbered (6) to (14) inclusive. (18) Defendants' demurrer at the close of all evidence should have been sustained by the court. (19) Plaintiffs' Instruction A was erroneous because broader than the pleadings. State ex rel. Anderson v. Hostetter, 346 Mo. 249, 140 S.W.2d 21; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Cantrell v. Burgess, 141 S.W.2d 200; Horvath v. Chestnut Street Realty Co., 144 S.W.2d 165; Denver Joint Stock Land Bank v. Sherman, 152 S.W.2d 702; Wild v. Pitcairn, 347 Mo. 915, 149 S.W.2d 800; Rucker v. Alton Railroad, 343 Mo. 929, 123 S.W.2d 24. (20) This instruction is misleading, argumentative and a comment on the evidence. The instruction was calculated to minimize and destroy the effect of defendants' entire evidence on the vital and only issue submitted to the jury. Fowlkes v. Stephens, 342 Mo. 247, 114 S.W.2d 997. (21) The instruction covers the entire case and directs a verdict and, therefore, cannot be cured by other instructions. Hall v. Manufacturers' Coal & Coke Co., 260 Mo. 351, 168 S.W. 927; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984. (22) The instruction is further erroneous in that it instructs the jury that if they find Powell "the close and confidential adviser of deceased" and fails to instruct the jury in any way as to what facts constitute a close and confidential adviser. (23) The instruction is also conflicting with plaintiffs' Instruction B which also purports to cover the entire case and direct a verdict. Fowlkes v. Stephens, 342 Mo. 247, 114 S.W.2d 997. (24) Instructions A and B both direct a verdict and when construed together are conflicting and tend to confuse or mislead the jury. Anderson v. Kincheloe, 30 Mo. 520; Freeman v. Berberich, 332 Mo. 831, 60 S.W. 2d) 393. (25) The court erred in refusing to give to the jury defendants' instructions 4 and 6. These instructions were proper instructions. O'Reilly v. O'Reilly, 157 S.W.2d 220; Larkin v. Larkin, 119 S.W.2d 351; Walter v. Alt, 347 Mo. 1201, 152 S.W.2d 135. (26) The verdict of the jury in this case is clearly the result of passion and prejudice of the jury against the defendants, which was induced by the prejudicial statements and remarks deliberately injected in the case by counsel for the respondents throughout the entire trial of the case. It is error to permit counsel to go outside record and present to jury extraneous matter of prejudicial character. Moore v. St. Joseph & G. I. Ry. Co., 268 Mo. 31, 186 S.W. 1035; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482; Kirkpatrick v. Wells, 319 Mo. 1040, 6 S.W.2d 591; Amsinger v. Najim, 335 Mo. 528, 73 S.W.2d 214; State ex rel. State Highway Comm. v. Patton, ...