Doherty v. Gilmore

• Decision Date: 26 May 1896
• Citation: 35 S.W. 1130
• Parties: DOHERTY et al. v. GILMORE et al.
• Court: Missouri Supreme Court

35 S.W. 1130

DOHERTY et al. v. GILMORE et al.

Supreme Court of Missouri, Division No. 1.

May 26, 1896.

WILLS — UNDUE INFLUENCE.

The question of undue influence should not be submitted to the jury on evidence merely that testator was old and infirm; that grand-nephews and a grand niece were the principal beneficiaries, to the exclusion of a niece who for several years had lived at testator's house and been his constant attendant; that one of such grandnephews, who at the time was, and for years before had been, a member of testator's household, went for the attorney who drafted the will at testator's request; that subsequently testator said, to one of his other relatives, "The clique [the grandnephews and grandniece] made me mad at you, and made me do what I did not intend to do"; and that, within the few months before testator's death, one of the grandnephews drew out on testator's checks all the money he had in a bank, $1,200 of it six days before his death. Per divided court.

Appeal from circuit court, De Kalb county; W. S. Herndon, Judge.

Action by William B. Doherty and others against Joseph D. Gilmore and others. Judgment for plaintiffs. Defendants appeal. Transferred to court in banc.

Harwood & Hubbell, for appellants. Casteel & Haynes, for respondents.

ROBINSON, J.

This is a suit to set aside the will of William T. Doherty, founded upon a petition in two counts; the first alleging want of testamentary capacity, and the second alleging undue influence exercised over the mind of the testator by one Joseph D. Gilmore, a grandnephew, who, together with a brother and sister, were the recipients of the greater portion of the testator's estate. The case was tried by a jury, who, under instructions from the court, found in favor of plaintiffs, which results in the setting aside of the will. Several errors are assigned by appellants, as grounds for reversing the judgment rendered therein; but, in the disposition which we will make of this appeal, only one will be noticed.

At the close of the testimony, defendants asked the court to instruct the jury "that there was no evidence of undue influence as in law would invalidate the writing propounded as the last will of the testator, Doherty, as alleged in the second count of plaintiffs' petition." Defendants' instruction was refused, and the following instructions on that issue, in behalf of plaintiffs, over the objections of defendants, as if to emphasize the error complained of, were then given by the trial court: "(1) The court instructs the jury that you are to pass upon two questions in this case: First, whether or not William T. Doherty, deceased, at the time of the execution of the paper writing offered in evidence as his will, possessed sufficient testamentary capacity to make a will; and, second, whether the paper writing, offered in evidence as the will of William T. Doherty, was the result of undue influence used upon the said William T. Doherty in procuring the execution of said paper writing. If you find, from the evidence, either that William T. Doherty, at the time of the execution of said paper writing, did not have sufficient testamentary capacity to make a will, or if said paper writing was the result of undue influence, then you will find your verdict against the will, and in favor of the plaintiffs, although you may believe, from the evidence, that he signed it as such, and the witnesses attested it as such." "(5) The court instructs the jury that if you find, from the evidence, that the testator, William T. Doherty, was an old man, of weak, disordered intellect, and that his mind was so impaired and weakened from any cause as to subject him to the dominion, control, or influence of Joseph D. Gilmore, and the jury find, from the evidence, that he exercised such influence and control over the mind of said William T. Doherty, in his disposition of his property, so as to destroy his liberty and free will, and cause it to be made to suit his wishes, and not the wishes of the testator, this is such an influence as will invalidate the will, and your verdict should be against the will. (6) If the jury find, from the evidence, that the mind of the deceased, William T. Doherty, either from sickness, disease, age, bodily and mental decay, or overweening confidence, was subject to the dominion and control of his grandnephew Joseph D. Gilmore, and that he exercised such power and influence...