Gott v. Dennis
| Decision Date | 18 December 1922 |
| Parties | OLLIE GOTT, Appellant, v. RACHAEL A. DENNIS et al |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.
Reversed and remanded.
Ernest D. Martin, Roy D. Williams and Robert M. Reynolds for appellant.
(1) The court erred in giving the peremptory instruction in the nature of a demurrer, at the close of the plaintiff's case, directing a verdict sustaining the will. It was a question for the jury under all the evidence in the record and the cause should have been submitted to the jury, both as to lack of testamentary capacity and as to undue influence. McFadden v. Catron, 120 Mo. 252; Bradford v Blossom, 190 Mo. 110; Roberts v. Bartlett, 190 Mo. 680; Meier v. Buchter, 197 Mo. 68; Holton v Cochrane, 208 Mo. 314; Teckenbrock v McLaughlin, 209 Mo. 535; Turner v. Anderson, 236 Mo. 523; Naylor v. McRuer, 248 Mo. 423; Wendling v. Bowden, 252 Mo. 647. (2) The proof of undue influence is not necessarily to be made out from direct and positive testimony, but often it must rest as an inference from facts and circumstances proven and in evidence. Whenever there is substantial evidence tending to establish undue influence, whether it be direct testimony or facts and circumstances from which such influence naturally flows as its product, the question becomes one for the jury to determine, and not the court. Maddox v. Maddox, 114 Mo. 35; Bradford v. Blossom, 190 Mo. 110; Meier v. Buchter, 197 Mo. 168; Teckenbrock v. McLaughlin, 209 Mo. 535; Turner v. Anderson, 236 Mo. 523. (3) Undue influence may be inferred from certain facts or from a combination of facts and circumstances. It may be shown by the relation of the parties, the mental condition of the testator, the provisions of the will, the character of the transaction, the interest of the parties charged with exercising it, or any other facts and circumstances connected with and bearing upon it. The question of undue influence is always to be determined in the light of all the circumstances connected with and bearing upon the execution of the will, along with the provisions thereof. Myers v. Haugher, 98 Mo. 433; Maddox v. Maddox, 114 Mo. 35; Dingman v. Romine, 141 Mo. 446; Crausen v. Crausen, 172 Mo. 691; Bradford v. Blossom, 190 Mo. 119; Meier v. Buchter, 197 Mo. 68. (4) Unnatural and unfair disposition by a testator of his property to the exclusion of his own child, or to the practical exclusion of such child, even though made to other relatives, is at once regarded with jealousy and suspicion, and at once compels a searching inquiry, and while such unnatural disposition may not alone be sufficient to establish undue influence, yet if there be other circumstances tending to show such undue influence, even though slight, such unnatural and unfair disposition, together with such other circumstances as may appear, are sufficient to take the case to the jury. Bradford v. Blossom, 190 Mo. 119; Meier v. Buchter, 197 Mo. 98; Holton v. Cochran, 208 Mo. 314; Teckenbrock v. McLaughlin, 209 Mo. 533; Turner v. Anderson, 236 Mo. 523; Wendling v. Bowden, 252 Mo. 688. (5) There are ample facts in the record aside from the unnatural and unfair provisions of the will upon which the jury might well find that the will of deceased was a natural result of the undue influence of the defendants over him, and of which no denial is made, and for which no explanation whatever is offered in the record. Such facts, when considered in connection with the provisions of the will, are overwhelming. (6) The court erred in excluding the testimony offered by the plaintiff as to large gifts of property made to certain of the defendants in his lifetime, such gifts tending to show undue influence by such defendants over the deceased in the disposition of his property. Meier v. Buchter, 197 Mo. 68; Holton v. Cochran, 208 Mo. 314.
Harvey & Bellamy, Alf. F. Rector and Lamm, Bohling & Lamm for respondents.
(1) The court was fully justified in giving the peremptory instruction, in the nature of a demurrer to plaintiff's evidence, establishing the will in controversy. There was no evidence in the entire record that the testator was of unsound mind, nor any substantial evidence of undue influence, nor that any influence or any kind was exercised over testator at the time of making his will. When there is no substantial evidence, either of testamentary incapacity or undue influence, it is the duty of the court to so instruct the jury. Teckenbrock v. McLaughlin, 209 Mo. 533; Campbell v. Carlisle, 162 Mo. 634; Sehr v. Lindeman, 153 Mo. 276; Fulbright v. County, 145 Mo. 432; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Von de Veld v. Judy, 143 Mo. 348; Berteret, v. Berteret, 131 Mo. 399; Cash v. Lust, 142 Mo. 630; DeFoe v. DeFoe, 144 Mo. 458; Hughes v. Rader, 183 Mo. 630; Jackson v. Hardin, 83 Mo. 185; Brinkman v. Rueggesick, 71 Mo. 553; Tibbe v. Kamp, 154 Mo. 543; Morton v. Paxton, 110 Mo. 456; Myers v. Hanger, 98 Mo. 433; Appleby v. Brock, 76 Mo. 685; Wendling v. Bowden, 252 Mo. 647; Goedecke v. Lindhorst, 278 Mo. 504; Nook v. Zuck, 233 S.W. 238. (2) The evidence on behalf of proponents thoroughly established the fact that testator was of sound mind at the time of the execution of his will. And where such mental condition is shown aliunde medical speculations, relating thereto, are entitled to but little weight. Rankin v. Rankin, 61 Mo. 295. The testimony of Dr. Spotts, witness for plaintiff, was mere speculation, to say the least. (3) While undue influence may be shown by facts and circumstances and need not always be proved by direct and positive testimony, yet there must be substantial evidence tending to establish such undue influence. Jackson v. Hardin, 83 Mo. 185; Tibbe v. Kamp, 154 Mo. 545; Hughes v. Rader, 183 Mo. 630; Knapp v. St. Louis Trust Co., 199 Mo. 640. There was no such evidence in the case at bar. (4) The undue influence contemplated by law, which it was necessary for appellant to show, was such influence as dominated the will of the testator at the time of its execution. And such influence must amount to "over persuasion, coercion, or force, destroying the free agency and will power of the testator." Jackson v. Hardin, 83 Mo. 185; Gibony v. Foster, 230 Mo. 106, 137; McFadin v. Catron, 138 Mo. 197; Brinkmann v. Rueggesick, 71 Mo. 553; Campbell v. Carlisle, 162 Mo. 646; Winn v. Grier, 217 Mo. 459; Nook v. Zuck, 233 S.W. 238. No evidence of the above character was shown in the trial nisi. There was no evidence that the devisees or legatees, or any one of them, coerced, persuaded, induced, or procured testator to make his will as he did. Furthermore, there was no evidence that any such devisees or legatees knew that deceased had made a will or contemplated making a will. (5) Nor does the existence of the motive and opportunity for undue influence, in the absence of affirmative evidence of its exercise, warrant the presumption of such influence in a case where the testator's mind is unimpaired and where he had an opportunity to and did understand, as in this case, the provisions of the will. McFadin v. Catron, 138 Mo. 197. (6) The presumption is always in favor of the validity of the will, and the mere fact of unjust discrimination in its provisions without more, does not shift the burden on the defendants. Inequality alone raises no presumption of undue influence, even though the testator gives nearly all of his estate to his legatees. McFadin v. Catron, 120 Mo. 252; McFadin v. Catron, 138 Mo. 197; Farmer v. Farmer, 129 Mo. 530; Maddox v. Maddox, 114 Mo. 35; Berberet v. Berberet, 131 Mo. 399. (7) Even though testator's sister, Rachael Dennis, who resided with him, may have said to plaintiff's mother, "Now that we have our brother back to help support us you can't have him any more; we will see to it that he will not leave any of his property to you or to your child," yet such statements were made to witness, according to her testimony, before she left Saline County, which was thirty-three years before the execution of the will. These statements were too remote to have any probative force of undue influence on testator at the time of the execution of his will and should not have been admitted in evidence. Ketchum v. Stearns, 76 Mo. 396; Fulton v. Freeland, 219 Mo. 494. Besides, such statements were mere hearsay and entitled to little weight, even if they had not been so remote. (8) The statements made by testator to plaintiff's mother and other witnesses some time between 1871 and 1879, and those made by testator to plaintiff in 1892, were no evidence of any undue influence by the defendants over the mind of testator at the time of the execution of the will. Statements or remarks made by a testator, not contemporaneous with the making of the will, are evidence only of the state of his mind at those times and not evidence of the truth of the facts so stated, and they are not to be taken as true for the purpose of establishing undue influence and defeating the will. Coldwell v. Coldwell, 228 S.W. 95; Hayes v. Hayes, 242 Mo. 155; Teckenbrock v. McLaughlin, 209 Mo. 533; Crowson v. Crowson, 172 Mo. 691, 703. (9) The only evidence excluded by the court as to gifts of property made to any of the defendants was the offer to show by David N. Goodloe and by Rachael Dennis that deceased gave said Rachael Dennis, his sister about $ 4000 in Liberty bonds in 1919, and the court did not err in excluding this testimony. This was seven years after the will was made and could have no possible tendency to show undue influence over the mind of the testator at the time of the execution of his will in 1912. Meier v. Buchter, 197 Mo. 68.
SMALL C. Brown and Ragland, CC., concur. James T. Blair, J., in what is said of mental capacity in...
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