Dausman v. Rankin

• Decision Date: 20 June 1905
• Citation: 88 S.W. 696,189 Mo. 677
• Parties: MAGGIE R. DAUSMAN v. EUGENE C. RANKIN, Appellant
• Court: Missouri Supreme Court

88 S.W. 696

189 Mo. 677

MAGGIE R. DAUSMAN v. EUGENE C. RANKIN, Appellant

Supreme Court of Missouri, Second Division

June 20, 1905

Appeal from Jefferson Circuit Court.-- Hon. Frank R. Dearing Judge.

Affirmed.

R. A Frazier, J. G. Williams and James F. Green for appellant.

(1) A jury has no right to alter the disposition of the testatrix's property simply because they may think she did not do justice to her family, and this rule applies with equal force to the courts.Hughes v. Rader,82 S.W 54;Tibbe v. Camp,154 Mo. 545;Berberet v. Berberet,131 Mo. 411;Lorts v. Wash,175 Mo. 502.(2) The settled meaning of "undue influence" in this State is such influence as amounts to over-persuasion, coercion or force, destroying the will-power of the testator.Hughes v. Rader,82 S.W. 54;Morton v. Bowdern,158 Mo. 379;Campbell v. Carlyle,162 Mo. 634;Tibbe v. Camp,154 Mo. 545;Southworth v. Southworth,173 Mo. 59;Wood v. Carpenter,169 Mo. 465;Riggin v. Westminster College,160 Mo. 570;Sehr v. Linderman,153 Mo. 276;Cash v. Lust,142 Mo. 630.(3) It is not the existence of undue influence, but the exercise of it in the execution of a will, which invalidates it.There is no evidence whatever in the record of fraud or deception practiced upon Mrs. Rankin, and, in the absence of such evidence, the will ought to stand.Crowson v. Crowson,172 Mo. 703;Thompson v. Ish,99 Mo. 160;Kishman v. Scott,166 Mo. 214;Wood v. Carpenter,166 Mo. 465;Brinkman v. Reugsick,71 Mo. 553.(4) There was no sufficient evidence of undue influence, and in the absence of substantial evidence of incompetency or undue influence, the case should not have been submitted to the jury.Hughes v. Rader,82 S.W. 54;Berberet v. Berberet,131 Mo. 399;McFadden v. Catron,138 Mo. 197;Maddox v. Maddox,114 Mo. 35;Kishman v. Scott,166 Mo. 215;Defoe v. Defoe,144 Mo. 458;Sehr v. Linderman,153 Mo. 289.(5)The court erred in refusing to give instruction 13 for defendant, and also in refusing to give instruction 9 offered on part of defendant.Carl v. Gabel,120 Mo. 283;Campbell v. Carlyle,162 Mo. 634;Tibbe v. Camp,154 Mo. 580;McFadin v. Catron,138 Mo. 213;Riley v. Sherwood,144 Mo. 366;Aylward v. Briggs,145 Mo. 613;Hughes v. Rader, 82 S.W. 32.

Sam Byrns and E. J. Bean for respondent.

(1) The instructions were stronger in favor of appellant than warranted by law.The onus is on the party alleging the undue influence to prove it.Under the facts in this case, when it was shown that undue influence existed and that the mind of the testatrix was in a state of vassalage to E. C. Rankin and that he received the greater part of the estate in a will prepared by himself, then the burden of proof shifted to the defendant to show the fairness of the transaction.Gay v. Gillilian,92 Mo. 250;Carl v. Gabel,120 Mo. 297;Lins v. Lenhardt,127 Mo. 282.(2) There was ample evidence of undue influence on which to submit the case to the jury.Bush v. Bush,87 Mo. 481.(3) Direct evidence of undue influence is not required.It may be proved by facts and circumstances.Schouler on Wills (2 Ed.), par. 242;Moore v. McDonald,61 Md. 340.(4)Defendant's demurrer to the evidence was properly overruled.Twohey v. Fruin,96 Mo. 104;Gannon v. Gas Co.,145 Mo. 516;Gordon v. Burrus,153 Mo. 223;Hughes v. Rader,82 S.W. 32.(5)This court will not interfere with the verdict on the question of the weight of evidence, as that was for the jury.Appleby v. Brock,76 Mo. 315;Young v. Ridenbaugh,67 Mo. 589.(6) A radical change in the will tends to show indue influence.Voorhees v. Voorhees,39 N.Y. 463;In re Bernsee's Will,17 N.Y. 671.It is a suspicious circumstance that the principal beneficiary writes the will, and undue influence may be inferred therefrom.Yardley v. Cuthbertson,108 Pa. St. 395.(7) The manner of executing the will was a badge of fraud.Baldwin v. Whitcomb, 71 Mo. 659.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

This is an action instituted in the circuit court of Jefferson county, Missouri, at the January term, 1902, for the purpose of contesting the last will of Cecilia A. Rankin, deceased.

The petition is as follows:

"Plaintiff states that she is a child and heir at law of Cecilia A. Rankin, deceased, and as such is interested in her estate; that deceased was a single woman and departed this life in Jefferson county, Missouri, on the -- day of April, 1901, possessed of a large estate of real and personal property; that her heirs at law are Charles T. and Eugene C. Rankin, defendants herein, and this plaintiff; that thereafter, to-wit, on the 17th day of May, 1901, there was admitted to probate by the probate court of Jefferson county, and within five years from this date, a certain instrument in writing as and for the last will and testament of Cecilia A. Rankin, deceased, and bearing date August 17th, 1899, and that letters testamentary thereon were on the -- day of -- --, 1901, granted by said probate court to said Eugene C. Rankin as executor named in said supposed will; that by the supposed will plaintiff and defendants herein were made legatees.

"Plaintiff further states that at the time the said supposed will was subscribed by the said Cecilia A. Rankin, in her lifetime, and also at the time the same was published and declared as and for her last will and testament, said Cecilia A. Rankin was not of sound mind and disposing memory, but on the contrary, was wholly incapable of making a testamentary distribution of her affairs.

"Plaintiff further says that, at the time said supposed will was executed by Cecilia A. Rankin, she was under the control of the defendantEugene C. Rankin; that he possessed and exercised undue influence over her, and that the will and the mind of the said Cecilia A. Rankin was controlled and dominated by said Eugene C. Rankin, and that he caused his will to be substituted and his intention carried out in said will for that of Cecilia A. Rankin, deceased.

"Plaintiff says that by fraud and artifice resorted to and practiced by the said Eugene C. Rankin on Cecilia A. Rankinhe induced her to attempt to make a will; that the supposed will was the result of the weak and unsound mind of the said Cecilia A. Rankin unduly controlled by the undue influence and fraud of the said Eugene C. Rankin, and that said will is not her own free act and deed, and that said writing is not the last will and testament of the said Cecilia A. Rankin, deceased.

"Plaintiff, therefore, prays that an issue be made up whether said writing produced and admitted to probate as aforesaid, be the last will and testament of Cecilia A. Rankin, deceased, or not, and that the same be set aside and for naught held and that plaintiff recover her costs in this behalf expended."

DefendantEugene C. Rankin filed his answer as follows:

"Now at this day comes defendantEugene C. Rankin, and for his answer to plaintiff's petition denies that the said Cecilia A. Rankin, testatrix, was not of sound mind and disposing memory at the time of executing the last will and testament in plaintiff's petition described and contested herein, and further answering denies that at the time said will was executed by Cecilia A. Rankinshe was under the control of the said defendantEugene C. Rankin, and denies that he possessed and exercised undue influence over her and denies that the will and mind of the said Cecilia A. Rankin was controlled and dominated by him, the said Eugene C. Rankin, and denies that he caused his will to be substituted and his intentions carried out in said will for that of Cecilia A. Rankin, and denies that the said will was not her own free act and deed and denies that the said defendant, Eugene C. Rankin, resorted to any fraud or artifice of any kind whatever, and denies that he induced her to make a will, and denies that the said will was the result of the weak and unsound mind of the said Cecilia A. Rankin, unduly controlled by the undue influence and fraud of the said Eugene C. Rankin, and denies that the said writing is not the last will and testament of said Cecilia A. Rankin, deceased, and denies that she was incapable of making a testamentary disposition of her affairs.

"DefendantEugene C. Rankin states the fact to be that the said Cecilia A. Rankin was at the time of the execution of the said last will and testament by her of sound mind and disposing memory; defendant further states that the said Cecilia A. Rankin departed this life on or about the 17th day of April, 1901, and that on the 7th day of May, A. D., 1901, the said will was duly admitted to probate by the probate court of Jefferson county; and that the last will and testament was the free act and deed of the said Cecilia A. Rankin and the untrammeled disposition of her property to the therein mentioned objects of her bounty.

"Wherefore, the defendant prays the court that the last will and testament of the said Cecilia A. Rankin be declared and established as her last will and testament."

The action was dismissed as to the executor of the will, and defendantCharles T. Rankin filed his answer as follows:

"Now at this day comes Charles T. Rankin, one of the defendants in the above entitled cause, and for answer to plaintiff's petition filed herein, admits each and every allegation in said petition contained."

The cause was tried before the court and a jury.The jury returned a verdict that the paper writing propounded was not the last will and testament of said Cecilia A. Rankin.

Motions for a new trial and in arrest of judgment were duly filed, heard and overruled, and the defendantEugene C. Rankin appealed to this court.

On the trial the defendant, Eugene C. Rankin, offered evidence of the due execution of the will.

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