Gordon v. Burris

• Decision Date: 22 December 1899
• Citation: Gordon v. Burris, 153 Mo. 223, 54 S.W. 546 (Mo. 1899)
• Parties: GORDON v. BURRIS, et al., Appellants
• Court: Missouri Supreme Court

54 S.W. 546

153 Mo. 223

GORDON v. BURRIS, et al., Appellants

Supreme Court of Missouri, First Division

December 22, 1899

Appeal from Livingston Circuit Court. -- Hon. J. W. Alexander Special Judge.

Affirmed.

James M. Davis, John E. Wait and Sheetz & Sons for appellants.

(1) The issue should have been confined to undue influence. West v. West, 144 Mo. 132. There was no allegation or evidence of incapacity to make a will, and this court can not determine on what ground the jury found against the will, and the cause must be reversed. Cash v. Lust, 142 Mo 630. (2) The court should have peremptorily instructed the jury that Mrs. Burris had the capacity to make a will under the pleadings and the evidence. Maddox v. Maddox, 114 Mo. 42. (3) The fact that under the will the plaintiff was virtually disinherited is no evidence of undue influence and that is especially true in this case, where there is no allegation or proof of incapacity to make a will. And it was gross error to call the attention of the jury so pointedly to that fact by instructions. (4) The natural love and affection that a parent may have for one of his or her children over another, however great it may be, is no justification for setting aside a will; nor is the mere existence of an undue or improper influence operating, but not exercised by the person possessing it, upon the mind of the testator when he makes a will, sufficient to invalidate it. Sunderland v. Hood, 84 Mo. 293; Brinkman v. Rueggesick, 71 Mo. 553. But such influence must dominate the will of the testator so that it can not be his own free act and deed, and this influence must have operated upon the mind of the person making the will at the time thereof. The influence which would be necessary to invalidate the will in this case must have been such as amounted to over-persuasion, coercion or force, destroying the free agency or will-power of the testatrix. Jackson v. Hardin, 83 Mo. 175; McFadin v. Catron, 120 Mo. 275; Jones v. Roberts, 37 Mo.App. 179; Norton v. Paxton, 100 Mo. 467; Myers v. Hanger, 98 Mo. 438. (5) The statements of Lucinda Burris were incompetent in this case because there was no question of her capacity to make a will. Bush v. Bush, 87 Mo. 485; McFadin v. Catron, 120 Mo. 274; Doherty v. Gilmore, 136 Mo. 421; Price v. Blankenship, 144 Mo. 203. (6) There was no undue influence in this case. Defoe v. Defoe, 144 Mo. 548; Cash v. Lust, 142 Mo. 642; McFadin v. Catron, 138 Mo. 226; Doherty v. Gilmore, 136 Mo. 420; Derberet v. Derberet, 131 Mo. 410.

Miller Bros. for respondent.

(1) The evidence shows much undue influence in this case, exercised over the mind of the testatrix by the defendants, who benefited and were the beneficiaries under the purported will. The jury so found and the evidence justified such finding. Schooler on Wills, sec. 227; Garvin v. Williams, 44 Mo. 465; Gay v. Gillihan, 92 Mo. 250; Burdette v. May, 100 Mo. 13. (2) Where the instructions in the main are correct, and from the evidence it can be seen the verdict is for the right party, the Supreme Court will not disturb the finding. Von de Veld v. Judy, 143 Mo. 367; Fitzgerald v. Baker, 96 Mo. 661; Vogg v. Railroad, 138 Mo. 172. (3) The trial court in the last trial pursued strictly the path marked out by the Supreme Court in its decision, and it is now the duty of the Supreme Court to approve that action. When a case has been once appealed, and being remanded, is tried in accordance with the opinion of the appellate court, error can not be assigned to the rulings of the trial court in so doing. The decision of the appellate court being res adjudicata, the appellate court has no further concern therewith. McQuillin's Plead. and Prac., sec. 2083; Galbreath v. Rogers, 45 Mo.App. 324; Galbreath v. Newton, 45 Mo.App. 312; Commission Co. v. American Bank, 35 Mo.App. 472; Zinc Co. v. Ins. Co., 41 Mo.App. 406. (4) The evidence is sufficient to establish the rankest fraud; that fraud is distinct from undue influence. The testatrix was induced, fraudulently assisted by the promise of her husband, to make the pretended will, and it was properly set aside. Norton v. Paxton, 110 Mo. 467; 1 Bigelow on Fraud, p. 571, sec. 5; Smith v. DuBose, 78 Ga. 413; Taylor v. Gardner, 35 N.Y. 559; In re Will Budlong, 126 N.Y. 423; Davis v. Dean, 66 Wis. 100.

OPINION

MARSHALL, J.

This is a proceeding to set aside the will of Lucinda Burris, on the ground that while she was feeble in mind and body, her husband, John Burris, and her three sons, George, Gus and Fred, procured her to make the will by their fraud, deception and undue influence, by which she left her separate estate, some two hundred and forty-four acres of land, to her said three sons, and bequeathed to the plaintiff, who is the child of her deceased daughter, only the sum of thirty dollars.

This is the third trip this controversy has made to this court. The first time it came upon an appeal by the defendants from a refusal of the trial court to enter a judgment in their favor establishing the will, after three petitions had been successfully demurred to; the trial court overruled the defendant's motion for judgment, and simply dismissed the case. On that appeal this court held that under section 2068, Revised Statutes 1889, when a third petition has been adjudged insufficient, the court is only authorized to enter a judgment for treble costs, but can not enter a judgment on the merits (Gordon v. Burris, 125 Mo. 39, 28 S.W. 191). The second time it came up here on appeal by the plaintiff from a verdict returned by direction of the court in favor of the defendants. It appeared that after the first case was dismissed by the court, the plaintiff had instituted a second action, which had been tried, resulting as stated. This court in an able and exhaustive opinion by Macfarlane, J., reversed the judgment of the lower court, and after fully reviewing the evidence said: "It shows that defendants were importuning their mother, though then sick, to make a will, and leave them the property, and it worried her. A jury might well infer that defendants were endeavoring, by unreasonable and worrying importunities, to overcome the wish of their mother to allow plaintiff to inherit her proportion of the estate. The evidence shows testatrix did not consent to leave all her property to defendants until her husband had agreed to provide for plaintiff out of his property. This circumstance tends to show that the old lady held out in her wishes until this promise was made. The fact is that Mr. Burris never made any provision for plaintiff, and soon after the death of his wife, died insolvent. If defendants knew of his insolvency and his inability to provide for plaintiff, and this promise was used to induce testatrix to make the will, the facts would have a tendency to prove the use of improper means and influences to secure the making of the will. Taking into consideration the condition of Mrs. Burris, her affection for her granddaughter, then a child of twelve years, her evident wish to provide for her; taking the opportunities of defendants, the grown sons of testatrix, living near by, desiring to secure to themselves the property; their persuasions, the worry of testatrix before making the will, and her grief afterward, we conclude that the evidence tended to prove undue influence and that the issue should have been submitted to the jury." [Gordon v. Burris, 141 Mo. 602, 43 S.W. 642.] This decision became the law of the case upon its retrial in the circuit court. [May v. Crawford, 150 Mo. 504, 51 S.W. 693.]

The case was then tried anew in the circuit court, the testimony being, in the main, the same as upon the former trial which is fully stated in the opinion of Macfarlane, J., and in fact was read from the transcript or from the depositions used on that appeal, but upon this trial there was testimony tending to prove that the sons had been trying for some time to get their mother to make a will in their favor, and that she had refused, saying, that she was not ready to do so; that they had been quarreling about it; that the doctor refused to attend her unless one of the sons (Gus) was sent away as he was worrying her and making her excited; that they urged her to make the will at that time because she was sick and the measles was in the house and if she contracted that disease in her weakened condition she would die (she did so and died about ten days after the will was made); that the sons had several times said, before the will was made, that Mary, the plaintiff, should never have any of the property; that when she made the will she immediately said, in the presence of Judge Broaddus who had prepared the will for her, to her husband: "Now, Mr. Burris, you know you agreed to provide for Mary" (the plaintiff), "and now is the time to have your will written," and that, she further said: "Mr. Burris was going to provide for Mary;" and that he said he intended doing so but was not ready just then; that he would be in town in a few days and that Judge Broaddus could write his will "and he would then provide for the little girl." Instead of doing so, however, within thirty days after his wife died he deeded all his property to his sons who turned it over to the bank that held their note for twenty thousand dollars, which was endorsed by their father, and hence the sons knew and the father knew, when his wife reminded him he had agreed to provide for their grandchild and asked him to make a will then which would do so, that he could not do so, as he was then insolvent by reason of his indorsement for their sons.

The trial resulted in a verdict and judgment for the plaintiff, from which the defendants have appealed to this court.

It is too clear to admit of serious debate that there was...