Hayes v. Hayes

• Citation: 145 S.W. 1155,242 Mo. 155
• Parties: HIRAM HAYES et al. v. LOARN HAYES et al., Appellants
• Decision Date: 29 March 1912
• Court: United States State Supreme Court of Missouri

145 S.W. 1155

242 Mo. 155

HIRAM HAYES et al. v. LOARN HAYES et al., Appellants

Supreme Court of Missouri, First Division

March 29, 1912

Appeal from Barry Circuit Court. -- Hon. F. C. Johnson, Judge.

Reversed.

W. P Sullivan, G. Purd Hays and T. D. Steele, for appellants James T. Neville of counsel.

(1) An attack upon a will on the ground that it was procured by undue influence necessarily assumes the existence of a will otherwise valid and regularly executed. Upon this issue therefore, the burden of proof is on the contestants. Jones v. Roberts, 37 Mo.App. 163; Carl v Gabel, 120 Mo. 283; Morton v. Heidorn, 135 Mo. 608; Doherty v. Gilmore, 136 Mo. 414; Campbelle v. Carlisle, 162 Mo. 634; Schierbaum v. Schemme, 157 Mo. 1; King v. Gibson, 191 Mo. 307. (2) Mere undue influence is not sufficient; to invalidate the will such influence must be so exercised as to result in the will made, and will not do so then, if such influence was of a wife or child and was exercised in a fair and reasonable manner, without fraud or deception. Crowson v. Crowson, 172 Mo. 691; McFadin v. Catron, 138 Mo. 197; Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Jackson v. Hardin, 83 Mo. 175. (3) When proponents have made out their prima facie case, it then devolves on contestants to prove undue influence by substantial testimony, failing in which, the court should direct a verdict for defendants. Sehr v. Lindemann, 153 Mo. 276; Schierbaum v. Schemme, 157 Mo. 16. It was the duty of the trial court to give a peremptory instruction to the jury to find in favor of the will where a prima facie case was made by the proponents and there was no substantial evidence to sustain the contest. Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Sehr v. Lindemann, 153 Mo. 276; Winn v. Grier, 217 Mo. 420; Fulton v. Freeland, 219 Mo. 494; Gibony v. Foster, 230 Mo. 106; Mackall v. Mackall, 135 U.S. 167; Martin v. Bowdern, 158 Mo. 379; Catholic University v. O'Brien, 181 Mo. 93; Schierbaum v. Schemme, 157 Mo. 22. (4) Statements made by the testator, both before and after the execution of the will are admissible as evidence of the testator's mental condition and the state of his affections, but such statements are not admissible as proof of undue influence, nor of the truth of the facts narrated. Crowson v. Crowson, 172 Mo. 691; Techenbrock v. McLaughlin, 209 Mo. 533; Seibert v. Hatcher, 205 Mo. 83.

J. J. Gideon, G. A. Watson, J. S. Davis and James George for respondents.

The court did not err in refusing the mandatory instructions at the close of the plaintiff's evidence and at the close of all the evidence. The question of undue influence was the only question submitted to the jury, the question of want of testamentary capacity having been eliminated at the commencement of the trial. There was abundant evidence to justify the court in submitting this question to the jury. The defendants did not stand upon their demurrer but joined the plaintiffs in submitting this question in their instructions. We understand the rule to be that the trial court cannot be convicted of error when, after demurrer to the evidence has been overruled, the defendant requests and obtains instructions submitting the issues to a jury which finds against him. This is certainly so where there is evidence to sustain the verdict. Crum v. Crum, 231 Mo. 636.

BOND, C. Brown, C., concurs.

OPINION

BOND, C.

This suit is to set aside, for undue influence, the will of W. R. Hayes, who died March 22, 1907, leaving a second wife, Adaline Hayes, seven children and one grandchild, the descendant of his eighth child; all of whom are parties plaintiff and defendant to this suit. The will in dispute was formally executed August 4, 1898, and purported to devise to the said widow and one child (Loarn Hayes) all the real and personal estate of the testator. The remaining six children and the grandchild are expressly named in the will and excluded from any share in the property therein devised. There was a mistrial in Christian county, and a change of venue to Barry county, where, after a second mistrial, the cause was again tried at the September term, 1908, of the circuit court.

At the hearing, the evidence, in substance, was, to-wit: The first wife of William R. Hayes died August 4, 1876, after having given birth to eight children, the fruit of her marriage. A little more than a year thereafter he married Adaline Hayes, his widow and one of the defendants. No children were born of this union. Four of the children of the first marriage had married at the time of their father's second marriage: Hiram, Martha Anderson, Eliza Downing and Mrs. Jones. The other children, not then of age, lived with their father, and included Loarn, two years of age; Minerva, fourteen; John, sixteen, and Prior eighteen. As they became respectively of age, they moved away from their father's home, except Loarn who remained there and at another house on the farm during his father's life.

Hiram Hayes, then fifty-five years of age, testified, that no misunderstanding occurred between himself and his father. "My relations with him remained friendly to the time of his death." On cross-examination, he stated, as follows: "We had a little difficulty shortly after he married the second time. I don't remember how many years that I didn't visit him, might have been as many as ten or twelve. We spoke to each other during that time when we passed, but had no conversation, I never tried to talk to him. He invited me to visit them and I went. It might have been only three or four years afterward, I don't know. I remember this trouble was about buying that tombstone; he was asked to put up one, and didn't, and a part of us went ahead and put it up. This was after father had married a second time. Sister Martha had asked him to put it up, I believe. I never asked him. Mrs. Anderson, Mrs. Downing and myself bought this tombstone. We put it up without saying to father what we were going to do. I knew father's disposition; knew his feelings were easily hurt. I didn't know whether it would hurt his feelings or not. I suppose it would. . . . I expected it would make him mad and hurt his feelings at the time we did it. That is the trouble that came up between me and father first. It was not but two or three years till father came to see me and invited me to visit him, and I went and visited him off and on from that on. I don't know how often. I plowed corn on his place once since that and the summer before he died him and stepmother came down and spent a day with me, one Sunday, and him and my cousin came down one Sunday. I never discussed the tombstone proposition with him. . . . When I married he gave me a team, chain harness, a year's provisions and a cow. I didn't have as much as father -- he had land and I didn't. When I went back to visit him my stepmother was there. I never had any trouble with her. She always treated me nicely. She never told me not to come."

He was at his father's house when he died, and had a talk with Loarn, who told him that "Pap made his will and willed it all to me" (Loarn). "Pap said for me to divide with you and John." That he (Loarn) stated he did not know what was in the will until told by his father, and that he (Loarn) went to Billings, where the will was deposited, and examined it "to see whether Roswell Jones's (the grandchild's) name was on it." That he further stated to witness: "Hiram, Pap said for me to divide with you and John."

Eliza Downing (nee Hayes) testified, that she and her husband moved away from her father's house when he married the second time; that she and a married sister prepared the dinner for him at his house on the wedding day, and received their stepmother; that she did not visit her father thereafter for twenty-five years, but did go to see him when he had "gangrene in his foot." She stated also, that she never heard either her stepmother or her brother Loarn say anything to her father about his will, but she thought "he was influenced or he never would have willed his children out."

Martha Anderson testified, that the first estrangement between her father and his elder children grew out of the fact that the stepmother stopped the younger children (who remained at home) from coming to see her and the other married ones (who had moved away); that she thought he was influenced in the matter of making his will but she did not know how; that she did not visit her father's house after December 24, 1877, while he lived; that she should have done so if she had thought she would be welcome; "that about four years ago Loarn told her that father had made a will and had willed everything to him, and remarked, 'that he done just as he told him there with everything.'"

Minerva Carlin stated she stayed at her father's house after his second marriage until she was sixteen years of age, when she was taken away by one of her brothers, after she had been struck with a rolling pin by her stepmother for not getting breakfast early enough on a certain Sunday morning; that she tried to defend herself; that her father came in the room and each of them told her own side; that her father told her to "hush;" that she went back in the kitchen "and finished up breakfast," and left about ten days thereafter and made her home with her sister Martha until she became twenty-five years of age, when she married; that her father never asked her to return; that her stepmother never spoke to her until after her marriage; that she saw her father at Loarn's house in 1902 or 1903. He then asked her to visit him for two or three days; that Loarn wrote her about the affliction of her father; that she then wrote her father offering...