Fulton v. Freeland
| Decision Date | 13 April 1909 |
| Citation | 118 S.W. 12,219 Mo. 494 |
| Parties | JAMES M. FULTON, Appellant, v. JOSEPH L. FREELAND et al |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court. -- Hon. W. C. Ellison, Judge.
Affirmed.
F. C Dungan, C. F. Booher and Geo. W. Wright for appellant.
(1) The court erred in rejecting and refusing to admit competent and material evidence offered by plaintiff. Baldwin v Robinson, 53 N.W. 531; Shepardson v. Potter, 18 N.W. 575; Haynes v. Hayden, 95 Mich. 332; In re Schell's Estate, 28 Colo. 168; Clough v Clough, 10 Colo.App. 443; In re Flint's Estate, 100 Cal. 391; In re Rufino, 116 Cal. 316; Potter v. Baldwin, 133 Mass. 427; Ketchum v. Stearns, 76 Mo. 396; Sunderland v. Hood, 84 Mo. 293; Fingley v. Cowgill, 48 Mo. 296; Cowgill v. Kennedy, 24 So. 459; Davis v. Calvert, 5 G. & J. 269; Johnson's Estate, 159 Pa. St. 631; In re Segur's Will, 44 A. 342; Dunaway v. Smook, 67 S.W. 62; Stacer v. Hogan, 120 Ind. 207; Steadman v. Steadman, 140 A. 406; Powers v. Powers, 78 S.W. 152; Baker v. Baker, 202 Ill. 595. The authorities are collected in In re Hess's Will, 31 Am. St. Rep. 665. (2) In giving to the jury the peremptory instruction in the nature of a demurrer to the evidence at the close of the whole case. Mowry v. Norman (Mo.), 103 S.W. 15; Meier v. Buchter, 197 Mo. 68; Bradford v. Blossom, 190 Mo. 139; Roberts v. Bartlett, 190 Mo. 709; Taylor v. Welburn, 20 Mo. 310.
J. W. Peery for respondents.
(1) The court did not err in excluding the evidence, by which it was sought to show improper relations between the testator and his second wife, before their marriage, and the trouble between him and his first wife, and his treatment of the latter, before and during the pendency of the divorce suit. All of this evidence, and the incidents related in it, referred to a period of time, from eight to thirteen years, before the execution of the will, and from twenty-one to twenty-six years before the death of the testator. Such evidence could throw no possible light on the mental condition of the testator, at the date of the will, or thereafter, and its only effect, if admitted in evidence, would have been to fill the record with false issues, and excite the prejudice of the jury. Ketchum v. Stearns, 8 Mo.App. 66, 76 Mo. 396; Pierce v. Pierce, 38 Mich. 412; Batchelder v. Batchelder, 139 Mass. 1; Flint's Estate, 100 Cal. 391; Weber v. Sullivan, 58 Iowa 260; Herwick v. Langford, 108 Cal. 608; In re Shell's Est., 28 Colo. 163; 1 Underhill, Wills, p. 213; Gardner on Wills, p. 203; Mitchell v. Donohue, 100 Cal. 202; Story v. Story, 188 Mo. 127; In re Kaufman, 117 Cal. 288; Maddox v. Maddox, 114 Mo. 35; Hughes v. Rader, 183 Mo. 630; Garland v. Smith, 127 Mo. 567; Sunderland v. Hood, 13 Mo.App. 232, 84 Mo. 293. But again, plaintiff introduced in evidence the record in the divorce proceedings and by the decree of the court, entered in that case, every question which he sought to raise by the excluded evidence was solemnly adjudicated and conclusively settled in favor of the testator and the woman who afterward became his wife. It seems to us that this evidence, introduced by plaintiff, is conclusive of the facts sought to be proven, and that in any event he would have no right to complain. Story v. Story, 188 Mo. 110. (2) This court will not review the action of the trial court in the giving or the refusal of a peremptory instruction unless all the evidence, upon which that court passed, is set out in the abstract. It is not sufficient to present merely the substance of the evidence, as is done in this case. And where, as here, an abstract shows upon its face that the evidence is incomplete; that it is disconnected, and parts of it show that other evidence was given by the witness, which is not set out; and especially, where the respondent shows, as we have, by the comparative statement of the bill of exceptions with the printed abstract, that not nearly one-half of the evidence has been printed, this court will not pass upon the question. The presumptions are all in favor of the validity of the judgment, and the appellant can not shift the burden of preparing an abstract of the record onto the respondent. The court will assume that the omitted evidence was of controlling force, and that the action of the trial court was justified by it. Reed v. Peck, 163 Mo. 337; Deering v. Hannah, 93 Mo.App. 618; Brand v. Cannon, 118 Mo. 595; Rutledge v. Tarr, 95 Mo.App. 265; Rhodes v. Rhodes, 95 Mo.App. 327; Mitchell v. Mitchell, 191 Mo. 447. (3) There is no presumption of undue influence against a wife who is made the beneficiary in her husband's will, no matter how unequal a distribution of his estate he may make. The excluding of all his children or other relations raises no presumption against the wife. 1 Underhill on Wills, pp. 211, 212; Rankin v. Rankin, 61 Mo. 295; Mays v. Mays, 114 Mo. 536; Jackson v. Hardin, 83 Mo. 175; Defoe v. Defoe, 144 Mo. 458; Crowson v. Crowson, 172 Mo. 691; McFadin v. Catron, 138 Mo. 218; Meier v. Buchter, 197 Mo. 85; Kultz v. Jaeger, 29 App. D. C. 300; Wood v. Carpenter, 166 Mo. 465; Chadwell v. Reed, 198 Mo. 359. (4) Where, as in this case, a man of concededly sound mind makes his will, when in good health, there is no presumption of undue influence at all from mere inequality in the distribution of his estate. McFadin v. Catron, 138 Mo. 226; Berberet v. Berberet, 131 Mo. 399; Schierbaum v. Schemme, 157 Mo. 12; Hughes v. Rader, 183 Mo. 630. There is nothing in the case of Meier v. Buchter, 197 Mo. 68, relied upon by appellant, which denies or qualifies this well-established doctrine. (5) The burden of proof was on plaintiff to prove undue influence on the part of Mrs. Fulton in the execution of the will, and the evidence was wholly insufficient for that purpose. Every incident and circumstance proven or offered to be proven might well exist and still there be no such undue influence as the law deems sufficient to invalidate a man's will. 1 Underhill, Wills, p. 212; Wood v. Carpenter, 166 Mo. 465; Defoe v. Defoe, 144 Mo. 458; Schierbaum v. Schemme, 157 Mo. 1; Tibbe v. Kemp, 154 Mo. 545; Doherty v. Gilmore, 136 Mo. 414-419; Hughes v. Rader, 183 Mo. 630; Sehr v. Lindeman, 153 Mo. 276; Crowson v. Crowson, 172 Mo. 691; Siebert v. Hatcher, 205 Mo. 104; Bauchens v. Davis, 229 Ill. 557; McFadin v. Catron, 138 Mo. 218; Ketchum v. Stearns, 8 Mo.App. 66, 76 Mo. 396; Herwick v. Langford, 108 Cal. 608; In re Donovan's Est., 140 Cal. 390. (6) The will of a deceased person will not be set aside on evidence which raises a mere suspicion or possibility of undue influence. Nor is evidence sufficient which shows that the circumstances attending the execution of the will are consistent with the hypothesis of its having been procured by such influence; it must be shown that they are inconsistent with a contrary hypothesis. Kultz v. Jaeger, 29 App. D. C. 300; McFadin v. Catron, 138 Mo. 219; Schierbaum v. Schemme, 157 Mo. 14; 29 Am. and Eng. Ency. Law (2 Ed.), 111; Kennedy v. Dickey, 100 Md. 152; Stewart v. Lyons, 54 W.Va. 665; Coughey v. Bridenburgh, 208 Pa. St. 414; Herwick v. Langford, 108 Cal. 608; Teckenbrock v. McLaughlin, 108 S.W. 46. (7) The theory, to which plaintiff's counsel has clung, throughout this long litigation, that Mr. Fulton, in 1880, was suffering from an insane delusion as to the conspiracy against his life, so as to invalidate his will, made nine years later, is in itself a "delusion." As heretofore pointed out, the evidence shows that the boat was fitted out by the persons charged, and that they were tried and convicted by a jury. It does not appear that the testator was in any error about the matter. But if he were, surely it was not an "insane delusion." "No belief that has any evidence for its basis is in law an insane delusion." Sayre v. Trustees, 192 Mo. 126; Stull v. Stull, 96 M. W. 202; 1 Underhill, Wills, pp. 126, 127; Owen v. Crumbaugh, 228 Ill. 380. Again, it is not pretended that this plaintiff was in any manner connected with that conspiracy, or that the testator's belief in it had anything to do with the making of his will in 1889. 1 Underhill on Wills, p. 125. (8) While a suit to contest a will is an action at law, this court will examine the evidence to see if there is any substantial evidence in the record to justify the setting aside of the will. Sayre v. Trustees, 192 Mo. 120; Archambault v. Blanchard, 198 Mo. 425; Teckenbrock v. McLaughlin, 108 S.W. 46; Jackson v. Hardin, 83 Mo. 185; Furber v. Bolt & Nut Co., 185 Mo. 311; Chadwell v. Reed, 198 Mo. 383. (9) As this case did not go to the jury, and the evidence, the exclusion of which is complained of, is set out in the record, this court can consider any legitimate evidence in the record, in determining whether the case should have been submitted. Southworth v. Southworth, 173 Mo. 74.
OPINION
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 one dollar "and no more" to the plaintiff.
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