Gordon v. Burris

• Decision Date: 07 December 1897
• Parties: GORDON v. BURRIS et al.
• Court: Missouri Supreme Court

43 S.W. 642

141 Mo. 602

GORDON v. BURRIS et al.

Supreme Court of Missouri, Division No. 1.

December 7, 1897.

APPEAL — FAILURE TO OBJECT — PLEADING — WILLS — UNDUE INFLUENCE — EVIDENCE — SUFFICIENCY — HEARSAY — DECLARATIONS — BURDEN OF PROOF.

1. The fact that the issue as to whether a writing produced was testator's will was not made up by the court, as required by Rev. St. 1889, § 8888, will not justify a reversal of the judgment, where no objection was made, and the jury found on such issue.

2. Though, ordinarily, the court should enter judgment on the verdict, yet this is not necessary on a verdict on the issue as to whether a writing was a will, under Rev. St. 1889, § 8889, making the verdict "final" on such issue.

3. A will containing a legacy to Lucy May Gordon, described as testatrix's granddaughter, has a latent ambiguity removable by extrinsic evidence, where testatrix's sole granddaughter was Mary J. Gordon.

4. A letter to plaintiff by one of three brothers, stating that the writer heard his brother urging testatrix to will her land to the three brothers, was hearsay, in an action to prove that the brothers exercised undue influence.

5. Where defendants are charged with exercising undue influence when testatrix made her will, declarations of one as to what another said are hearsay.

6. Where defendants are charged with exercising such undue influence over testatrix as to cause plaintiff's disinheritance, their statements, made within a year before the will was executed, that testatrix should never leave plaintiff any of her property, were admissible.

7. A testatrix's statements, made after the execution of a will, to the effect that she was unduly influenced in making the will, are not admissible as evidence of the facts stated.

8. The fact that testatrix cried, when speaking of plaintiff, in connection with the disposition of her property under a will she had made, is competent to show that plaintiff was disinherited through undue influence.

9. The burden is on contestants to show that a will is rendered invalid by undue influence.

10. Where contestants do not produce substantial evidence to show that testatrix made her will through undue influence, the court will direct a finding of the jury against them on such issue.

11. Though a court cannot take from the jury the consideration of an issue in support of which the evidence is uncontradicted, yet, where sufficient uncontradicted evidence has been introduced to satisfy the statute requiring proof of the execution of a will, it is not error to charge that the will is executed, where it is contested, but where no issue as to its execution is made by the pleadings.

12. Testatrix made a will when she was over 70 years of age, and when confined to her bed with sickness. Her mind was vigorous for her age. Her heirs were three sons and a granddaughter, whom she was fond of, and whom the will disinherited. The sons were adults living near testatrix, and before the will was executed they had expressed a desire that the granddaughter be disinherited, and one of them so worried testatrix that her physician required him to keep away. No troublesome family matters were shown other than the making of the will. She refused to make the will until her husband promised to provide for the granddaughter, and she cried when talking about the granddaughter shortly thereafter. Her husband died insolvent, soon after her death, without keeping his promise. Held, that the question as to whether the sons had exercised undue influence should have been submitted to the jury.

Appeal from circuit court, Livingston county; Joshua Alexander, Special Judge.

Action by Mary J. Gordon, by next friend, against Fred Burris and others. From a judgment for defendants, plaintiff appeals. Reversed.

Miller Bros., for appellant. Davis, Wait & Sheetz, for respondents.

MACFARLANE, J.

This is a statutory suit contesting the will of Lucinda Burris, deceased. The petition charges, in substance, that on and prior to March 20, 1890, John Burris and Lucinda Burris were husband and wife; that there was born of the marriage three sons, Augustus, George, and Frederick, and one daughter, Josephine; that the daughter married Liston Gordon in 1878, by whom she had one child, plaintiff, Mary Josephine Gordon, and died in 1885; that on the 20th day of March, 1890, the said Lucinda Burris executed and had witnessed a paper writing by which she devised to her three sons, in equal parts, all her estate, consisting of 240 acres of land, worth about $30 per acre, which was made subject to $30, which she bequeathed to Lucy May Gordon. The said Lucinda died on the 31st of March, 1890, the said three sons and plaintiff, her granddaughter, surviving her. The will was in due time probated, in common form, by the probate court of the county. The three sons, devisees under the writing, are made defendants. The petition charges that "said defendants, by fraud, art, and deceit and undue influence, overpersuaded and induced the said Lucinda Burris to make the pretended will," whereby the said plaintiff was virtually disinherited. The answer admits the probate of the will, and avers that the paper writing is the last will and testament of the said Lucinda Burris, and denies all other allegations. The answer charges, as a special plea, that plaintiff had previously prosecuted a suit against the same parties, contesting the same will; that after certain proceedings in said court plaintiff took a nonsuit; that thereupon defendants filed a motion for judgment establishing the will; that said motion had never been disposed of, but was still pending, and was a bar to this suit. The reply was a general denial of new matter. By agreement the case was tried before J. W. Alexander, Esq., as special judge.

To sustain the will, defendants examined as witnesses Judge E. J. Broaddus and Dr. Freeman, who were the subscribing witnesses. These witnesses both testified that the said Lucinda Burris signed the paper writing as her last will, that she was of sound mind, and that they subscribed their names as witnesses in her presence. After this formal proof the will was read in evidence. Plaintiff, to sustain the charge of her petition, offered evidence tending to prove that testatrix at the time of her death was over 70 years old; that she had suffered from la grippe, followed immediately by an attack of pneumonia, from which she was convalescing when the will was made, though she was still confined to her bed, and was physically very feeble. While suffering from pneumonia, she was exposed to the measles, and she, her family, and her physician believed that, in her condition, she could not survive an attack of that disease. In these circumstances the will was made on March 2, 1890. In a few days thereafter she took the measles, from which she died on the 31st day of the same month. The evidence tended to prove, also, that testatrix regarded plaintiff, her grandchild, with affection. The evidence does not show the age of the defendants, or whether they lived in the family of the testatrix or not. It may be inferred, however, that they were mature men. One of them had studied medicine, and acted as agent for his mother in renting her land. We can fairly infer, also, that they either lived in the house or near by at the time the will was made. One of them was sick at the time, and occupied a room in the house, and the others appeared to have been about the house much of the time. There was evidence tending to prove that during the sickness of Mrs. Burris, and before her death, defendants insisted that she should make her will and give them the property. A witness testified that she heard defendants in the room with their mother talking "about having her make the will. They thought it ought to be done, they said. They said that they ought to have the property. Their father went in at this time, and says, `Mother is sick; don't bother her now.'" Cora Glore, who was a servant in the family, testified that testatrix told her, after the will had been made, that "they coaxed her to make the will. Told her she might die, and she had better have a will. * * * She said they did not want her to will little May anything. She called her `Little May.'" The witness testified that when she spoke of little May she cried. Mrs. Wilkison testified that one of the boys, Fred, had studied medicine, and waited on his mother, and administered medicine to her. The record shows the following evidence of Judge Broaddus, who wrote the will, and was one of the subscribing witnesses: "Before I left, after I had written the will, and it had been signed, the old lady said, `Now, Mr. Burris, you know you agreed to provide for Mary [whatever her name was], and now is the time to have the will written, while you are here.' Q. While you were there? A. `While Judge Broaddus is here.' I said, `Yes; I would write it out.' He said, `No; he wasn't ready just then.' He said he would be in town in a few days, and I could write his will, and he would then provide for the little girl. She said at that time that Mr. Burris was going to provide for Mary, or whatever her name was. Q. They directed that conversation to you? A. Yes, sir; to me, and in the presence of the old man and George. The old man said he intended to do so, and would do so. Q. Did the old man ever come to your office and make such a will? A. He never came to my office afterwards, that I know of. * * *" Dr. Freeman testified substantially to the same facts, though his impression was that the conversation occurred before the will was signed. Plaintiff offered to read in evidence a letter from defendant George Burris to plaintiff, which, on objection by defendants, was excluded as hearsay. This letter contained the following statement: "I came over to father's from my home, and went into the room adjoining the one where mother lay sick, and the hired girl was in that room, and Gus was in the room...