Garland v. Smith

• Decision Date: 19 March 1895
• Citation: 28 S.W. 191,127 Mo. 567
• Parties: Garland et al., Appellants, v. Smith et al
• Court: Missouri Supreme Court

28 S.W. 191

127 Mo. 567

Garland et al., Appellants, v. Smith et al

Supreme Court of Missouri, Second Division

March 19, 1895

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

Hiram J. Grover and Lee, McKeighan & Priest and Jos. S. Laurie with whom is H. Crea, for appellants.

(1) Fraud and undue influence are distinct matters. 1 Bigelow on Fraud, p. 571; Beach on Wills, sec. 107; Davis v Calvert, 5 Gill & John. 269; Stewart v. Elliott, 2 Mackay, 307; Terry v. Buffington, 11 Ga. 337; In re Hesse's will, 31 Am. St. Rep. 665; Smith v. Dubois, 78 Ga. 413; Greenwood v. Cline, 7 Ore. 17; Dietrick v. Dietrick, 5 Serg. & R. 323. (2) A will, the offspring of deception, can not stand any more than the offspring of constraint. Schouler on Wills, sec. 230; Kerr on Fraud, 299; Tyler v. Gardner, 35 N.Y. 559; Milton Budlong's will, 126 N.Y. 423; Davis v. Dean, 66 Wis. 100; Greenwood v. Cline, 7 Ore. 17; Davis v. Calvert, 5 Gill & John. 269; Beaubean v. Cicotte, 12 Mich. 461; Haynes v. Hayden, 95 Mich. 332; Porter v. Throop, 47 Mich. 313. (3) Where a fiduciary relation exists between a donor and the beneficiary, a presumption arises that undue influence has been acquired and exercised; such presumption being, however, one of fact, and may be rebutted and overcome. This rule obtains both as to deeds and wills. The decisions in this state, upon this subject, and to that effect, are familiar to the court and need only to be cited. Garvin v. Williams, 44 Mo. 465; s. c., 46 Mo. 206; Harvey v. Sullens, 46 Mo. 147; s. c., 56 Mo. 372; Street v. Goss, 62 Mo. 226; Ford v. Hennessy, 70 Mo. 580; Mueller v. St. Louis Hospital Ass'n, 73 Mo. 242; Bridwell v. Swank, 84 Mo. 455; Gay v. Gillilan, 92 Mo. 250; Carl v. Gabel, 120 Mo. 283. The finding of the trial court n a will contest is not conclusive on the supreme court. Kaare v. Co., 19 N.Y. 789; see Hamilton v. Armstrong, 120 Mo. 597; Whitelaw v. Simms, 19 S.E. 113; Chappel v. Trent, 19 S.E. 314; Trezevant v. Raines, 19 S.W. 577; State v. Primm, 98 Mo. 368.

Judson & Taussig for respondents.

(1) A will contest, so far as the review on appeal is concerned, is an action at law, and the finding of facts will not be reviewed. Eddy v. Park, 31 Mo. 513; Harris v. Hayes, 53 Mo. 90; Young v. Ridenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314. (2) This cause was tried below on contestant's own theory of the law. If any error was committed, it was in favor of appellants and against respondents, in the declarations of law given on both issues. First. Instruction number 8, in form on the issue of undue influence. Carl v. Goebel, 25 S.W. 214. And also in requiring "clear and convincing proof" to repel the alleged presumption. Gay v. Gillilan, 92 Mo. 258. Second. Instruction number 3, in applying an erroneous test of a disposing mind. Couch v. Gentry, 113 Mo. 248. Third. None of the instructions were warranted by the testimony. (3) There is no merit in the specific assignments of error, as to rulings of trial court. In fact the record is notable in the extraordinary and unprecedented range permitted to contestants in introducing remote and irrelevant testimony. Ketchum v. Stearns, 8 Mo.App. 70; 76 Mo. 396; McFaddin v. Catron, 25 S.W. 506. (4) The contention of appellants in this case is nothing but an attempt to reopen the finding on the facts of the circuit court rendered on their own theory of the law. (See authorities, supra, 1.)

OPINION

In Banc.

DIVISION TWO.

Gantt P. J.

This is a statutory proceeding to determine whether the instrument propounded as the last will and testament of Mrs. Persis Smith, of date October 15, 1890, was in truth and in fact her last will. The cause was tried before Judge Valliant, both parties waiving a jury.

Mrs. Persis Smith, the testatrix, was the widow of James Smith. She and her husband were old residents of St. Louis. They had no children but had amassed a large estate. In 1838, James Smith received into his family a destitute, homeless boy named George Connelly, who was then about five years old. The boy was ever afterward, and now is, known in these pleadings as George Smith. He was reared and educated as their own child, and finally graduated at Harvard University. George Smith, when a young man, went to New Mexico, but returned to St. Louis about 1860. He acquired habits of intemperance, and became largely indebted in St. Louis and left St. Louis in 1865 for New York. From that time until the death of James Smith, in 1877, no communication passed between George Smith and his foster parents. Indeed, the record discloses that he himself regarded his treatment of James Smith as the basest ingratitude.

James Smith, by his last will, gave one half of his property to Dr. Wm. G. Eliot, the chancellor of Washington university. The other half he conveyed by trust instrument to James S. Garland, a nephew of his wife, in trust for his wife, Persis Smith, giving her the right to dispose of it by her last will. At the time of James Smith's death, his wife was sixty-seven years old.

Mrs. Persis Smith was a charitable woman and was lavish in her gifts to her relatives and to charitable and religious institutions. She executed several wills and trust deeds providing for her relatives, in none of which did she make any mention of George Smith, prior to 1882. In July, 1880, George Smith, being in extreme poverty in New York, appealed to two of his former friends in St. Louis for aid. These appeals were communicated to Mrs. Smith, who insisted on furnishing the necessary assistance herself, and on the twenty-seventh day of July, 1880, began a correspondence with George Smith, which culminated in his coming to St. Louis, and resulted in Mrs. Smith changing her former disposition of her property and granting and devising the great bulk of her estate to George Smith. She became alienated from her nephew, Mr. James S. Garland, her trustee, and refused to see him. She had lost largely by the failure of the Provident Bank and the Belcher Sugar Refinery, and she attributed these losses to Mr. James S. Garland, as the record shows, most unjustly.

Mr. Garland became an invalid, and Mrs. Smith had her attorney procure from him a deed relinquishing his trusteeship while he was in an asylum for treatment. When Mr. Garland learned his aunt, to whom he was devoted, had became embittered against him, he brought a suit to set aside this relinquishment of his trust, and thereupon Mrs. Smith consulted counsel and executed the will contested in this action.

The grounds for assailing the will are, briefly, want of mental capacity to execute a will by reason of great age and diseased condition of her mind and body; that it was obtained by means of fraud, deception and imposition practiced upon her by George Smith; third, undue influence of George Smith.

Persis Smith had three brothers, Charles Garland, Benjamin F. Garland and John P. Garland, only one of whom, John P. Garland, survived her at her death, February 14, 1891. Charles Garland died in 1880, leaving four children, James S. Garland, John T. Garland, Nathan M. Garland and Jennie G. Hosmer, wife of James K. Hosmer. These last named four are the original plaintiffs in this suit. The defendants were John P. Garland and Mrs. Dale and Mrs. Wisher, the daughters of the deceased brother Benjamin F. Garland, and three children of John P. Garland, legatees in the will, Amelia Mantels, an old and faithful servant, also a legatee, and George Smith. The defendants John P. Garland, his wife Elizabeth and his daughters, Persis Jane Garland, Elizabeth Garland, and his son James, and Mrs. Wisher, and Mrs. Dale filed answers admitting all the allegations in the petition and joined in contesting the will, but have not appealed. Defendants Amelia Mantels and George Smith, by separate answers, denied all the allegations in the petition, and in addition thereto George Smith averred that he was the adopted son of Persis Smith, and therefore plaintiffs were not the heirs at law and would not inherit even if Mrs. Smith died intestate.

After a trial consuming four weeks of time, the court gave the following declarations of law:

"1. If the court, sitting as a jury, believes from the evidence that on the fifteenth day of October, 1890, Persis Smith was erroneously of the opinion that she was financially ruined, or that her estate was greatly reduced, and that she had very little property left; or, if the court, sitting as a jury, believes from the evidence that said Persis Smith on the fifteenth of October, 1890, had no definite or accurate knowledge of the amount or value of her property, and, by reason of said want of knowledge, executed on that day the instrument purporting to be her last will and testament; or, if the court, sitting as a jury, believes from the evidence that at said time said Persis Smith was in such a bodily and mental condition as not fully to understand and comprehend with reasonable certainty the state and condition of her property, and the true state and condition of her nearest kin and heirs-at-law, any and all of these facts may be considered by the court as indicative of her mental condition, and from them it may be inferred that said Persis Smith was not of sound and disposing mind on said day.

"2. If the court, sitting as a jury, believes from the evidence that at the time Persis Smith signed the paper purporting to be the will, she was possessed with a false, exaggerated opinion and estimate of the value of the property she had previously settled upon her nearest kin, any or all of them parties plaintiffs and defendants in this case; and was also laboring under a false and mistaken opinion of the nature and character of such settlement, and of the estates thereby created and vested in...