Gay v. Gillilan

• Decision Date: 20 June 1887
• Citation: 5 S.W. 7,92 Mo. 250
• Parties: GAY and others v. GILLILAN and others.
• Court: Missouri Supreme Court

5 S.W. 7

92 Mo. 250

GAY and others v. GILLILAN and others.

Supreme Court of Missouri.

June 20, 1887.

1. WILL — UNDUE INFLUENCE — BURDEN OF PROOF.

An instruction that, "in order to set aside the will," etc., "on the ground of undue influence, it must be shown that the circumstances of its execution are inconsistent with any other hypothesis than such undue influence, which cannot be presumed,

but must be shown in connection with the will, and it devolves upon those contesting the will to show such undue influence by a preponderance of the testimony," is erroneous.¹

2. SAME.

Evidence tended to show that the testator, who was 80 years old, had become mentally and physically impaired through the use of liquor, and that his son, who was the principal beneficiary under the will, had acquired dominion over him, and kept him in fear by threatening violence and circulating reports of his father's improper intimacy with his daughter-in-law. Held, that a prima facie case of undue influence was made out, sufficient to cast upon such principal beneficiary the burden of establishing the validity of the will in this respect.

3. SAME.

Where the testator, without any apparent cause, disinherits four of six children, this is sufficient to cast upon the children who are named as beneficiaries in the will the burden of establishing its freedom from undue influence.

Appeal from circuit court, Daviess county.

H. C. McDougall and Prosser Ray, for appellants. Rush & Alexander, for respondents.

SHERWOOD, J.

This suit is a statutory proceeding to determine whether the instrument executed January 13, 1882, was the last will of Nathan Gillilan, deceased. He died December 17, 1882. Plaintiffs claim that it was made under undue influence, obtained and exercised by his son George, one of the defendants, and the principal beneficiary, by threats of taking his father's life. Other grounds were alleged in the petition, — that the testator was not possessed of sufficient testamentary capacity to make a will, and was intoxicated when he signed the instrument in question.

The testimony exhibits a considerable degree of conflict as to whether the testator was intoxicated when the will was made; as to the condition of his mind at that time; and as to whether there was undue influence exerted in securing the execution of the will.

Objections are taken to the first instruction given on behalf of the proponents of the will. It is as follows: "The jury are instructed that the only issue in this case is whether or not the instrument in writing offered in evidence is the last will and testament of Nathan Gillilan, deceased; and if they find from the evidence that he signed in the manner testified by the subscribing witnesses, and at the time of such signing he had sufficient understanding to comprehend the transaction, the nature and extent of his property, and to whom he was giving the same, the jury should find that he had sufficient mental capacity to make a will, notwithstanding he was, from the use of intoxicating liquors or otherwise, weaker in body and mind than during his more vigorous manhood; and if the jury find that his understanding was thus sufficient, they should find that such instrument was and is the last will and testament of Nathan Gillilan, unless they further find that the making and signing thereof was procured by an undue influence which amounted to a moral force or coercion, destroying free agency, and substituting the will of George W. Gillilan for that of his father; and there must be proof that it was obtained by force or coercion; and in order to set aside the will of a person of the sufficient mental capacity aforesaid, on the ground of undue influence, it must be shown that the circumstances of its execution are inconsistent with any other hypothesis than such undue influence, which cannot be presumed, but must be shown in connection with the will; and it devolves upon those contesting the will to show such undue influence by a preponderance of the testimony."

This instruction is manifestly erroneous in that portion of it which declares that "in order to set aside the will," etc., "on the ground of undue influence, it must be shown that the circumstances of its execution are inconsistent with any other hypothesis than such undue influence, which cannot be presumed, but must be shown in connection with the will; and it devolves upon those contesting the will to show such undue influence by a preponderance of the testimony." In civil cases "it is not necessary that the minds of the jurors be freed from all doubt. It is their duty to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth." In such cases "it is sufficient if the evidence, on the whole, agrees with and supports the hypothesis which it is adduced to prove. But in criminal cases it must exclude every other hypothesis but that of the guilt of the party." 1 Greenl. Ev. (14th Ed.) § 13a; 3 Greenl. Ev. § 29. It will be observed that the portion of the instruction now being criticised lays down a rule as stringent in its operation in civil cases as the one which prevails in criminal cases. Indeed, it may be said that the rule laid down in this instance is more stringent than the one obtaining in criminal cases; for in the latter class of cases it is usual to use the qualifying word "reasonable" in connection with the word "hypothesis." Wills, Circ. Ev. 149; Com. v. Costley, 118 Mass. 1.

Here it will be noted that, in order to defeat the will of Nathan Gillilan on the ground of undue influence, the instruction in question requires the contestants to show that the circumstances of the execution of the will are inconsistent with any other hypothesis than such undue influence, whether such hypothesis was a fanciful or a reasonable one. Even if the qualifying word "reasonable" had been used in the instruction, it would have been unwarranted under the authorities cited. Elsewhere it has been determined that in a civil case an instruction is erroneous which required a party to establish his claim "by a clear preponderance of the evidence." Bitter v. Saathoff, 98 Ill. 266. In this court an instruction was condemned by intimation, no direct ruling being necessary, which made it a condition precedent to plaintiff's recovery that they show "by clear and certain proof that defendant did maliciously kill," etc. Culbertson v. Hill, 87 Mo. 553.

In Nichols v. Winfrey, 79 Mo. 544, an action for the wrongful and malicious killing of the plaintiff's former husband, it was laid down that it was not necessary to a recovery of damages that the defendant's guilt should be established beyond a reasonable doubt, but that it was sufficient for the plaintiff to make out her case in accordance with the rule prevalent in other civil cases. And though Greenleaf in earlier editions asserts a different doctrine, yet in the last edition it is admitted, in a note, that the doctrine of the text is not well supported. 2 Greenl. Ev. (14th Ed.) § 426, and cases cited; 1 Greenl. Ev. § 13a. And I do not consider that the vice of the words commented on was neutralized by the remaining words of the instruction; for the jury, notwithstanding those remaining words, must have been impressed with the erroneous idea already conveyed to their minds by the former objectionable words.

It is a fact deserving much consideration that no case has been instanced by counsel where an instruction, requiring that those who attack the validity of a will on the ground of undue influence should show that the circumstances of its execution are inconsistent with any other hypothesis than such undue influence, has received the sanction of an appellate court. It is true that the original of the idea conveyed by the words under discussion is thought to be found in the remarks of Lord Chancellor CRANWORTH in Boyse v. Rossborough, 6 H. L. Cas. loc. cit. 51. But such observations, however appropriate when and where made, should not be used as the basis for an instruction to a jury trying an issue devisavit vel non. The remarks of the lord chancellor were: "But, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis." I take it that these words do not go so far as at first blush they might seem to do. I think that the meaning they were intended to convey was simply this: That, the burden of proof being on those who attack a will on the ground of undue influence, it is not sufficient for them barely to show that the circumstances of the will are consistent with the hypothesis of undue influence; for this would be but to create an equipoise in the testimony, and, the onus being on the party attacking the will, he must go...