Harvey v. Sullens

• Citation: 46 Mo. 147
• Parties: DAVID D. HARVEY et al., Appellants, v. ISAAC SULLENS et al., Respondents.
• Decision Date: 31 March 1870
• Court: United States State Supreme Court of Missouri

46 Mo. 147

DAVID D. HARVEY et al., Appellants,

v.ISAAC SULLENS et al., Respondents.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Geo. P. Strong, for appellants.

A gift to an agent will be upheld if intelligently and freely made. (Nesbit v. Lockman, 34 N. Y. 167; same principle in Harris v. Tremenheere, 15 Ves. Ch. 38, 39.) The most that can be claimed from the authorities is that when a confidential relation exists between the testator and beneficiary under the will, the onus of proving that the will was intelligently and freely made, rests upon the party claiming under it. (Kinne v. Kinne, 9 Conn. 102; St. Leger's Appeal, 34 Conn. 434. 442.)

T. G. C. & G. W. Davis, for respondents.

I. If an attorney, trustee, or agent of a testator, writes his will while the relation subsists and takes a benefit under the will, the law presumes undue influence, and the courts require a clear preponderance of evidence that “everything connected with the making and execution of the instrument was free from impropriety and unfairness,” and also “that juries must be satisfied that the relation had no undue or improper influence over the mind of the testator, and did not induce him to make a different disposition of his estate, or any portion of it, from what he otherwise would have done.” (St. Leger's Appeal, 34 Conn. 450; Garvin's Adm'r v. Williams, 44 Mo. 465; Waterson v. Waterson, 1 Head, 1; Wilson v. Moran, 3 Bradf. Sur. 172.)

II. The fact that one makes a will in extremis in favor of those around him, and makes no provision, or an inadequate one, for his children, is entitled to great consideration as evidence of fraud. (Goble v. Grant, 2 Green's Ch. 629; 1 Redf. on Wills, 510, 515, 521.) The testatrix's will is clearly inofficious, which alone is sufficient to excite apprehension of undue influence at the very least. (1 Redf. on Wills, 137-8.)

III. Where a devisee writes or procures another to write a will, it must be proved that the intention to give originated with the testator, and not with the devisee or drawer. (3 White & Tud. Lead. Cas. 141; 34 Conn. 450; 3 Bradf. Sur. 507; id. 185; Maury v. Sibler, 2 Bradf. Sur. 134-51; Converse v. Converse, 21 Verm. 168; Waterson v. Waterson, 1 Head, 1.)

WAGNER, Judge, delivered the opinion of the court

This case is brought here by appeal to review a judgment of reversal rendered in the general term of the St. Louis Circuit Court. The proceeding was commenced under the statute to set aside the will of Elizabeth Sip, which was admitted to probate in St. Louis county on the first day of December, 1864. The will bears date the 24th day of November, 1864, and devises to Sullens all the real estate of which the testatrix died seized, and bequeaths to five grandchildren and one great-grandchild small bequests--$100 to each of her granddaughters, and $100 and her clothes to her sister, Mrs. Maria Longworth, for “her kindness to the testatrix in her last sickness,” and also a bed to a girl of the name of Pritchett, who was a servant in the house of the testatrix, and $50 each to her grandsons, and $50 to her great-grandson. Sullens, the devisee, wrote the will, is made executor, and gets about five-sixths of the whole estate.

Upon the trial in the court below, certain issues were framed and submitted to the jury, who found in favor of the will, and judgment was rendered accordingly, which was reversed in general term. The material question raised is the action of the court on the trial in refusing certain instructions asked by the plaintiffs.

The petition proceeds upon two grounds: first, that the testatrix was not of sound mind when the will was executed; and, second, that the defendant, Sullens, procured it by fraud and undue influence.

Without undertaking to go into any minute detail of the evidence, the substantial facts appear to be these: The testatrix, Mrs. Sip, was an old lady about 73 years of age; kept house and resided on her farm. The witnesses all agree that, though uneducated, she possessed a strong mind and had good business capacity, but in the latter part of her life she became quite childish and irritable. Her immediate relations, grandchildren and great-grandchildren, and three sisters, were all poor, and there does not seem to have existed any particular enmity or unfriendliness between them. Sullens, the principal devisee and executor, was an entire stranger in blood to the testatrix, was her near neighbor, was on terms of the utmost intimacy with her, belonged to the same church, and occasionally took her to meeting in his wagon. That he had acquired her complete confidence is conclusively shown. The testatrix had made two wills several years previous to the one now in controversy, and it seems that Sullens wrote them both; but what disposition she made of her property does not appear.

In her last illness, when in fact she was in extremis, all hopes of recovery having vanished, Sullens, who was always attentive, is found at her bedside, conversing with her in so low a tone of voice that her sister, Mrs. Longworth, although but a few feet distant, could not understand anything that was said. A memorandum was then taken, and in the evening Sullens came back with the will written by himself. On his way to the house of the testatrix, he met a man by the name of Green, almost a stranger, and requested him to return and witness the will. Dr. Williams, a brother-in-law of Sullens, was already in the house. Sullens then asked all the household and those in attendance, including Mrs. Longworth, the sister, to retire from the room, which they did, leaving him, the testatrix and Dr. Williams alone in the room. It then appears the will was read to her, after which Green was beckoned by Sullens to come in, when, with the assistance of Williams, she made her mark and acknowledged in the presence of those three that it was her last will, and expired in three or four days thereafter. At the time of the execution of the will, Sullens enjoined secrecy on the witnesses, and requested them to say nothing about it during the life of the testatrix, if she died in her then present illness.

An analogous question to the one here presented was discussed with some fullness by this court at the last October term, in the case of Garvin's Administrator v. Williams et al., 44 Mo. 465. It was there attempted to be shown with what distrust and suspicion the law looks upon all transactions where persons occupying a special or confidential relation seek to obtain an advantage inconsistent with their position. The general principles therein laid down need not be here reiterated, and we shall therefore confine this examination to a more exact review of the question raised and directly involved.

It is within the experience and observation of every one that old persons in extremis may be easily imposed upon by those in whom they confide. Where, therefore, a party standing in this relation to such a testator prepares a will in his own favor, it can not but excite suspicion, and create in the minds of those who are called upon to pronounce on it a desire to have other evidence than proof of the execution of the instrument and the testable capacity of the deceased. Where a person is so sick, worn...