Fulton v. Freeland

• Decision Date: 31 March 1909
• Citation: 118 S.W. 12,219 Mo. 494
• Parties: FULTON v. FREELAND et al.
• Court: Missouri Supreme Court

118 S.W. 12

219 Mo. 494

FULTON v. FREELAND et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

Rehearing Denied April 13, 1909.

1. WILLS (§ 164)—UNDUE INFLUENCE—ADMISSIBILITY OF EVIDENCE.

Evidence of illicit relations between testator and his second wife before marriage is too remote to prove undue influence as to a will drawn about eight years thereafter.

2. WILLS (§ 38)—MENTAL INCAPACITY OF TESTATOR—"INSANE DELUSION."

There is no such thing as an insane delusion founded on facts, and, if the idea entertained has for a basis anything substantial, it is not a delusion.

3. WILLS (§ 55)—MENTAL INCAPACITY OF TESTATOR — INSANE DELUSION — INSUFFICIENCY OF EVIDENCE.

Evidence held not to show an insane delusion on the part of a testator as to a conspiracy by his former divorced wife and her relations to do him bodily injury.

4. WILLS (§ 163) — UNDUE INFLUENCE BY WIFE—PRESUMPTION.

The fact that testator's wife is the chief beneficiary raises no presumption of undue influence, though, if the testator was weak mentally and his wife transcended the limit of the rule, and attempted to foist on him a will of her own dictation, a different question would be presented.

5. WILLS (§ 166) — UNDUE INFLUENCE BY WIFE — ILLICIT RELATIONS BEFORE MARRIAGE AS EVIDENCE.

Where evidence of illicit relations before marriage to show undue influence by a wife as to her husband's will is admitted, it must be followed by acts of undue influence after marriage.

6. WILLS (§ 163)—UNDUE INFLUENCE—PRESUMPTION.

A will in favor of a mistress, or one with whom testator's relations have been meretricious, raises no presumption of undue influence.

7. WILLS (§ 163)—UNDUE INFLUENCE—BURDEN OF PROOF.

The burden is on contestant to show undue influence as to a will.

8. WILLS (§ 166)—UNDUE INFLUENCE—INSUFFICIENCY OF EVIDENCE.

Evidence held not to show undue influence as to a will.

Appeal from Circuit Court, Holt County; W. C. Ellison, Judge.

Action by James M. Fulton against Joseph L. Freeland and others. From a judgment for defendants, plaintiff appeals. Affirmed.

T. C. Dungan, C. F. Booher, and Geo. W. Wright, for appellant. J. W. Peery, for appellees.

GRAVES, J.

Action by plaintiff, the son of William J. Fulton, deceased, contesting the will of deceased made in March, 1889. By said will it was provided: (1) Expenses of funeral to be paid out of personal property; (2) that executor sell so much of testator's property as may be required to pay debts and pay same; and (3) bequest of $1 "and more" to the plaintiff.

The remaining four paragraphs or items of this will read:

"Item 4th. I hereby devise and bequeath to my beloved wife, Elzie, all the residue of my estate, both real and personal.

"Item 5th. In case my said wife shall die before, or with me, I herein devise the residue of my estate to my stepdaughter, Lizzie McPike, in estate tail to her and the heir or heirs of her body forever.

"Item 6th. In case my stepdaughter dies without issue I devise the said residue of my estate, one-half to Pauline Engleman of Parkville, Missouri. and one-half to Mary Scott of Pueblo, Colo.

"Item 7th. I hereby appoint Joseph L. Freeland to execute this, my last will and testament."

Grounds of contest, as alleged, were: (1) That said will was executed "by and through the fraud, deception, persuasion, and undue influence of the defendant Elzie Fulton and Joseph L. Freeland, Lizzie McPike, and J. P. Tucker, or one or all of them, and of other persons related to said Elzie Fulton or friendly to her, and conspiring and conniving with her to procure said instrument, whose names are to this plaintiff unknown, and for that reason cannot be here stated." (2) Testamentary incapacity, thus stated: "That long prior to the signing and publishing of said instrument the mind of said William J. Fulton has become diseased and subject to a morbid delusion and hallucination amounting to a permanent and fixed insanity incapable of being removed and eradicated from the mind of said testator, which said delusion was in substance that the plaintiff herein and said testator's divorced wife had entered into a conspiracy for the purpose of inflicting bodily injuries upon said testator, and to wreck said testator financially; that said delusion was without reason and unfounded in any fact or substance whatever, but purely a delusion and insane conception of said testator induced, created and perpetuated fraudulently and wrongfully by the defendant Elzie Fulton and her friends until his death, February 9, 1902, for the purpose and with the intention of procuring from said testator the will sought in this proceeding to be vacated and annulled." And (3) a general charge (in which is plead the alleged evidence) of a fraudulent scheme upon the part of Elzie Fulton, then Elzie McPike, a widow, beginning in 1876, when testator was married to another woman, by which the said Elzie by illicit relations with deceased sought to gain undue influence over him, separate him and his wife, and then marry him, and procure the will in question securing to her and her relations the property and estate of deceased, which alleged fraudulent scheme it is charged was carried out by the said Elzie and others.

By answer the defendant admitted the execution and probate of the will, the death of testator February 9, 1902, the qualification of defendant Freeland as executor, and denied all other allegations. Further answering, they averred that William J. Fulton was a citizen of Platte county when said will was made and published, over the age of 21 years and of sound mind, and that the said will, a copy of which was attached to the answer, was the last will and testament of William J. Fulton, and prayed that the same might be so declared.

Reply, general denial of the new matter in the answer.

As above stated, plaintiff is a son of deceased by a first wife. Defendant Elzie Fulton is the second wife and widow of deceased. Lizzie McPike is the daughter of Elzie Fulton by her first husband, William McPike, and Pauline Engleman and Mary Scott are sisters of Elzie Fulton.

The history of this cause as depicted by the versatile pen of plaintiff's learned counsel lacks only stage settings for a modern play. More or less of it will be required for a proper understanding of the points in dispute, and especially on the point made that the trial court erred in excluding certain testimony offered. The suit was brought in Platte county, but on change of venue was tried in Holt county.

In 1852, William J. Fulton was married at Adrain, N. Y., to Mary J. Hadley, then a girl of 14 years and an orphan. The young wife had inherited 17 acres of land and some money from her father. The young couple remained there, on this place, until 1863, when they removed to Wyandotte, Kan. Prior to this removal the plaintiff in this case was born of this marriage. In 1876, the Fultons removed to Parkville. Upon reaching the West, William J. Fulton began contracting with a railroad company to furnish ties, timber, and wood, and though he and his wife, Mary, suffered the hardships of tie camps, there was amassed considerable property. Troubles began shortly after the removal to Parkville. Two miles south of Parkville, and in the neighborhood wherein William J. Fulton had large interests and was working many men, lived the widow McPike on what is known as the "Roberts farm," the old homestead of Mr. Roberts, father of Mrs. McPike, and the home of Mrs. McPike before her marriage to William McPike. Fulton acquired an interest in this farm, and he and Mrs. McPike farmed it together. Mr. Fulton at that time was a business man of large affairs, and it is claimed by the plaintiff that Mrs. McPike at this time conceived the idea of separating Fulton and his wife, Mary, and ultimately marrying Fulton, and then procuring a will of the character of the one finally made, and to this end she used all the wiles of a crafty widow, even to the extent of maintaining illicit relations with Fulton. The evidence at the trial was largely by deposition, and a great mass of it pertained to alleged proof of the relations between Fulton and Mrs. McPike from 1876 up to their marriage in 1881. This proof came largely from former employés of Fulton, both colored and white, from employés of Mrs. McPike, and from parties who testified to neighborhood rumors. The testimony of this character was excluded by the court, and of this action error is assigned here.

Another contention of plaintiff is that, through the influence of Mrs. McPike, Fulton was led to believe that a conspiracy had been formed by and between his then wife, Mary, and her nephew, William Hadley, and others to kill Fulton and get his property. That Fulton believed there was such a conspiracy is amply shown by his acts and the testimony of his neighbors and friends, but as to Mrs. McPike's connection therewith the tendered evidence is not convincing. To the evidence bearing upon this alleged conspiracy we will divert later.

Following the thread of events, it appears that on September 3, 1880, William J. Fulton sued his wife, Mary J. Fulton, for divorce. In his petition he charged that they had not lived together as man and wife since the year 1870, although they both lived in the same house and he supported her. That he first suspected his wife of infidelity to him in 1868, and from that time until the filing of the petition she had been guilty of adultery with divers persons upon divers occasions, some of which persons and dates were named. That she used profane language toward plaintiff, and in the winter of 1879-80 attempted to kill him with a pistol. There was also the following charge: "That in the spring of 1880 she and William O. Hadley and divers other persons formed a conspiracy to murder the plaintiff and get possession of his property, and would have succeeded in all probability, but for the accidental and timely discovery of their hellish plot."

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