Gittings v. Jeffords
| Decision Date | 14 March 1922 |
| Citation | 239 S.W. 84,292 Mo. 678 |
| Parties | PAUL THOMAS GITTINGS, Appellant, v. TRACY L. JEFFORDS et al |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Ralph Hughes, Judge.
Affirmed.
Harris L. Moore for appellants.
(1) The court erred in giving defendant's instruction numbered 1. This was the only instruction authorizing the jury to find a verdict for either party. The clause of the instruction permitting the jury to find for the plaintiff reads as follows: "If under the instructions given you find that the paper writing here produced is not a certified copy of the original writing and that the original was not the will of said Mary O. Dallas, then your verdict will be in this form." This amounted to a peremptory instruction to find against the plaintiff, because there was no contention in the case that the certified copy produced was not a certified copy of the original writing; in fact, it was conceded throughout that it was. Errors in instructions are presumed to be harmful. Fink v. Railroad, 161 Mo.App. 332; Jones v. Pub. Co., 240 Mo. 214. (2) The court erred in giving the second instruction asked by the defendant. This instruction entirely took from the jury the question of fraud on the part of Jeffords in securing the execution of the will. Instructions directing a verdict, but ignoring an issue in the case, are erroneous. Grady v. Ragar, 181 S.W 428. (3) The court erred in refusing to give Instruction B asked by the plaintiff. There can be no question at all that this instruction correctly declares the law. The instruction was not a comment upon the evidence, because the construction of written instruments is for the court, and an instruction construing a written instrument is not a comment on the evidence. Bunting v. Allen, 18 N.J.L. 303; Klopfer v. Levi, 33 Mo.App. 322, 89 A. 740. The construction of a written instrument is for the court, and while it is held that where an instrument from which different inferences may be drawn is introduced to prove an extrinsic fact, the inference is for the jury; these cases do not mean that the court should not declare the legal effect of an unambiguous writing. Milstead v. Mtg. Co., 49 Mo.App. 191; State v. Patterson, 68 Me. 475; Primm v. Haren, 27 Mo. 205. (4) Instruction A requested by the plaintiff should have been given. It correctly declares the law of the case, and there is no other instruction covering the same ground.
Craven & Bates and Claude Coppinger for respondents.
(1) Instruction 1 was merely a direction to the jury on the form of the verdict, if they found certain facts to be true. There were two forms of verdict prepared by the court. The form of verdict described is proper on the conditions given in the premises. The jury found the facts to be as given in the first condition, consequently the second form of verdict (the one complained of) had no application. The jury were directed to find for or against the will as they found the facts to be. (2) A mere charge of fraud without specification of the act or acts which constituted the alleged fraud amounts to nothing in pleading. Newman v. Trust Co., 189 Mo 423; Nagal v. Railroad Co., 167 Mo. 96. (3) It is essential to state a cause of action based on fraud to aver that the representations alleged to have been made are false and so known to be by the defendant, that such representations were made with the intention of deceiving the party acting upon them and that she was deceived thereby and relying upon such representations she was induced to act. Remmers v. Remmers, 217 Mo. 557; Morrow v Franklin, 233 S.W. 227. (4) Fraud will not be presumed, but must be clearly and distinctly proven by the person alleging it. Flood v. Busch, 165 Mo.App. 142; Link v. Jackson, 164 Mo.App. 195; Goss v. Evans, 244 Mo. 329, 340. (5) Facts constituting fraud must be pleaded in will cases the same as any other case involving fraud. Storey v. Storey, 188 Mo. 110. (6) Instruction B offered by plaintiff and refused by the court did not declare the legal effect of a written document, but declared its weight as a piece of evidence. It is, therefore, an erroneous instruction, because it is a comment on the testimony. Connelly v. Ry. Co., 120 Mo.App. 658; Oexner v. Loehr, 117 Mo.App. 698; Brouster v. Fox, 117 Mo.App. 711. (7) Instruction A offered by the plaintiff and refused by the court is erroneous, first, because it attempts to inject into the case the element of fraud and deceit which is not pleaded and is not an issue; second, because it is covered by Instruction 7 given on behalf of plaintiff.
This is an action to contest the validity of the will of Mary O. Dallas, who died in Washington, D. C., on May 5, 1918. Plaintiff is the half brother of deceased. Defendant Tracy L. Jeffords is executor of the will of deceased and principal beneficiary thereunder. The remaining defendants are a half brother, a half sister, three nieces, a nephew and a cousin of the deceased. The grounds of contest were mental incapacity, fraud and undue influence. Upon the trial the issue of mental incapacity was abandoned. The verdict of the jury established the instrument in controversy as the last will of the deceased. From a judgment so holding plaintiff has appealed.
Mary O. Dallas, the testatrix, was a widow, who had been twice married. She at one time resided at Excelsior Springs, Missouri, but for several years before her death had lived in the city of Washington, D. C. Defendant Jeffords is a practicing attorney of Washington. According to his testimony he became acquainted with Mrs. Dallas in 1911 or 1912, through meeting her at a boarding house where they both roomed. In December, 1913, Mrs. Dallas rented an apartment, and Mr. Jeffords then began taking his evening meal with her, for which he paid her a dollar a day. Later one of Mrs. Dallas's nieces came to room and board with her, and defendant Jeffords aided the niece in securing a position. His relations with Mrs. Dallas were always friendly and occasionally he would spend the evening at her home. During the lifetime of her second husband she had lived in an aristocratic neighborhood and had had plenty of money. After his death she became somewhat financially embarrassed, having an income of but about $ 136 a year. She, however, owned some real estate in Excelsior Springs, worth from $ 6,000 to $ 7,000, which she was continually endeavoring to sell. Being in need of ready money she applied to defendant Jeffords, who from time to time loaned her various sums, which, by January, 1915, amounted to $ 1000 in the aggregate. About that time a settlement was effected, and Mrs. Dallas gave Mr. Jeffords a deed to one of the lots in Excelsior Springs, the same being valued at $ 2,000, but encumbered by a mortgage for $ 1000. Mrs. Dallas, however, continued to pay the taxes on the property and the interest on the mortgage. Mr. Jeffords testified that it was immaterial to him whether the conveyance was considered an outright deed or a mortgage. He said,
About the time of the above-mentioned settlement, Mrs. Dallas came to defendant Jeffords' office and handed him a written memorandum, in her own handwriting, of a will she requested him to put in legal form. Pursuant to such request Mr. Jeffords drew a will, conforming to the memorandum, dated January 25, 1915, under which he was bequeathed the sum of $ 1000 and made a residuary trustee as to all property not otherwise disposed of. He testified that he had had no previous conversation with Mrs. Dallas as to the terms of the said will, and that he did not directly or indirectly offer any suggestions with respect thereto. This will was introduced in evidence, but we do not deem it necessary to reproduce it.
After the delivery to defendant of the deed to the lot in Excelsior Springs, given in settlement of the $ 1000 then owing by Mrs. Dallas, defendant Jeffords continued to advance her a certain sum of money each month, payments being made by checks, which were introduced in evidence. The several amounts so advanced aggregated the sum of $ 2131.83. With respect to such advancements Mr. Jeffords testified: Part of the moneys so advanced was used in the payment of taxes, street improvements, and interest on mortgages affecting the Excelsior Springs property. The checks submitted in evidence usually ranged from $ 31 to $ 33 in odd amounts, such as $ 31.20, $ 32.62, $ 33.33, etc. Mr. Jeffords' explanation of this variation was that Mrs Dallas did not wish a Mr. Hood, who was secretary and treasurer of the trust company where she did her banking business, and who was a cousin of her husband, to know that she was receiving the exact amount of her necessary expenses, as he would have known if she had, for instance, deposited a check for $ 33 one day and drawn a check for exactly the same amount the next day. One of the checks offered in evidence bearing date of November 6, 1915, was for $ 502.02, and, according to the testimony of defendant Jeffords, was given for the payment of special taxes against the Excelsior Springs property. Counsel for plaintiff endeavored to show that it was given as a consideration for the deed to the lot which Mrs. Dallas had executed in favor of Jeffords, but this the latter denied.
Defendant Jeffords testified that in February, 1918, Mrs. Dallas came to his office and...
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