Cowan v. Shaver

• Decision Date: 19 June 1906
• Citation: 95 S.W. 200,197 Mo. 203
• Parties: COWAN et al. v. SHAVER et al.
• Court: Missouri Supreme Court

95 S.W. 200

197 Mo. 203

COWAN et al. v. SHAVER et al.

Supreme Court of Missouri, Division No. 1.

June 19, 1906.

1. WILLS—CONTEST—EVIDENCE.

Where, in a will contest, contestant claimed that testator's will was obtained from him by undue influence in pursuance of a conspiracy to divert the property from testator's family to that of his wife, the will of the wife, by which she bequeathed the principal part of the estate received through testator's will to her daughter, was admissible to show the result of the alleged conspiracy.

2. SAME—BURDEN OF PROOF.

In a will contest, the burden of proving the will devolves on those who would maintain it, and if, in their effort to prove the due execution of the will, proponents show that the paper offered is not what testator was made to believe it was when he signed it, it is ineffective as a will.

3. SAME—INSTRUCTIONS—EVIDENCE.

In a will contest, evidence held to justify an instruction that if testator signed the will with the understanding and belief that it conveyed only a life estate in his property to his wife with remainder to his children in equal parts, then the will was not testator's will.

4. SAME — TESTAMENTARY CAPACITY — UNDUE INFLUENCE.

In a will contest, evidence held to justify submission of the issues of testamentary incapacity and undue influence to the jury.

5. SAME—UNDUE INFLUENCE—ACQUIESCENCE.

Mere acquiescence, by beneficiaries of a will, in the purpose of one exercising undue influence on testator, for such beneficiaries' benefit, is sufficient to invalidate the will.

6. SAME—EXECUTION — SIGNATURE BY WITNESSES—TESTATOR'S PRESENCE.

Under the express provisions of Rev. St. 1899, § 4604, witnesses to a will are required to sign the same in testator's presence.

Appeal from Circuit Court, Sullivan County; John P. Butler, Judge.

Action by George W. Cowan and others against Pinky P. Shaver and others. From a decree in favor of complainants, defendants appeal. Affirmed.

N. A. Franklin, B. L. Robinson, and John W. Bingham, for appellants. Calfee & Eubanks and J. C. McKinley, for respondents.

VALLIANT, J.

This is a contest over a paper writing purporting to be the last will and testament of John Cowan, deceased, who died in Sullivan county in May, 1902, leaving surviving him his wife, Polly Cowan, and seven sons and two daughters, and leaving, also, real and personal estate to the value of about $10,000. By the will in question the testator gives to each of his children the sum of $30 and the balance of his property to his wife, who was also named as sole executrix without bond. The will was admitted to probate and the widow qualified as executrix, but she died, and letters of administration d. b. n. c. t. a. were issued in May, 1903, to Henry F. Cowan, a son of the testator. The widow, Polly Cowan, left a will by which she gave the principal part of the estate to her daughter, Pinky Shaver. The plaintiffs in this are the sons and one of the daughters of the testator, the defendants are the other daughter, Pinky Shaver, and the minor children of a deceased daughter for whom a guardian ad litem was duly appointed and answer filed. The petition alleges that John Cowan was not of sound mind when he executed the alleged will, and that it was obtained by the exercise of undue influence exerted by Polly Cowan, Pinky Shaver, and John Shaver. John Shaver was the brother of Polly Cowan, and his son married Pinky. The theory of the plaintiff, is that John Shaver was the chief schemer and united with his sister Polly and his daughter-in-law Pinky to divert the property from the Cowans to the Shavers.

The testimony on the part of the plaintiffs tended to prove as follows: John Cowan, the alleged testator, was about 75 years old when he died, and was quite feeble in body and mind. He had come to Missouri when he was a young man and settled in Putnam county, where he lived until about two years before his death, when he moved to Sullivan county. He was a farmer and had accumulated an estate worth about $10,000. Before he moved from Putnam county, his children, who were all of mature years, the eldest being 51 years old, had all left the paternal home and established homes of their own. He had been, even in his old age, a vigorous man in mind and body until a few years before his death, when his dwelling house was destroyed by fire, and when, in his efforts to save his property from the flames, he received severe burns on his leg and his head, from which he never recovered. One effect of the burns was a persistent, gangrenous sore, which caused blood poisoning and a breaking down of his physical and mental strength. He was unable to attend to his business and placed it in the hands of John Shaver, his wife's brother, who managed it for him until his death. John Shaver lived in the neighborhood into which the old man moved in Sullivan county and exercised control over most of his affairs. The testimony of two physicians who attended him, and that of members of his family tended to show that his mind was not only weak, but diseased, and that he had not sufficient mind and memory to understand the nature of the will he was attempting to make. The testimony also tended to show that John Shaver, into whose hands he had placed his business affairs, was the active agent in bringing about the execution of this document. He had been urging the testator for some months to make a will, and this paper was executed in Shaver's house. The circumstances show that there had been an arrangement made in advance, by whom it is not expressly shown, for the execution of this paper. On the morning of its execution the old man was driven in a vehicle with his wife and daughter Pinky Shaver to the residence of John Shaver, where a man to draw the will had been requested to come and two men to witness it. It does not expressly appear who requested these men to attend at John Shaver's house on that morning for that purpose, but it appears that Pinky's husband, who was John Shaver's son, was the messenger who was sent to ask the man, who wrote the will, to come. This man was a farmer, and had also sometimes taught school. He had never written a will before, and did not know what he was called to go to John Shaver's house on that occasion for, until he got there. When informed of what he was expected to do he asked for a form and John...