King v. Gilson

• Decision Date: 22 November 1905
• Parties: KING et al. v. GILSON et al.
• Court: Missouri Supreme Court

90 S.W. 367

119 Mo. 307

KING et al. v. GILSON et al.

Supreme Court of Missouri, Division No. 1.

November 22, 1905.

1. WILLS — TESTAMENTARY CAPACITY — PRESUMPTIONS.

As Rev. St. 1889, § 3682, provides that only the contracts of one found to be of unsound mind and under guardianship made without the consent of the guardian are invalid, the presumption of testamentary incapacity prevails as to one under guardianship as a person of unsound mind.

2. SAME — UNDUE INFLUENCE — BURDEN OF PROOF.

Notwithstanding testatrix was under guardianship as a person of unsound mind at the time of the execution of an alleged will, the burden was on those who asserted the will was procured by undue influence to show that fact.

3. SAME—EVIDENCE—SUFFICIENCY.

Undue influence is not required to be established by direct evidence, but may be inferred from facts and circumstances, and may be shown by the relation of the parties, the mental condition of the person whose act is in question, and the character of the transaction.

4. TRIAL — REQUEST TO CHARGE — INSTRUCTIONS ALREADY GIVEN.

Where the substance of instructions requested is contained in the instructions given, there is no error in refusing the instructions requested, especially where no specific objections are urged on appeal.

5. WILLS—CONTEST—INSTRUCTION.

In a will contest, a charge that under the law of descents and distribution, in the absence of a will, the estate of testatrix would go to her next of kin, naming them, is proper, where the principal beneficiaries are other than the next of kin.

6. EVIDENCE—EXPERT TESTIMONY—WEIGHT.

The testimony of experts is not binding on the jury, but should be considered by the jury, like the testimony of other witnesses, in connection with all the facts given in evidence, and given such weight as the jury considers it entitled to receive.

7. EVIDENCE—ADMISSIONS—JOINT INTEREST— BENEFICIARIES UNDER WILL.

The admissions of one beneficiary in a will are not binding on the other beneficiaries, and, in a will contest, the admission in evidence of an affidavit of one of several proponents, made in support of a motion for a new trial in a proceeding to inquire into the mental capacity of testatrix prior to the execution of the will in question, was reversible error.

8. WILLS—CONTEST—EVIDENCE.

In a will contest, where is was shown that testatrix was under guardianship as a person of unsound mind at the time of the execution of the will and at the time of her death, the record of the probate court on the inquiry in which a new trial was granted, showing that the verdict of the first jury was that testatrix was of sound mind, was admissible.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Proceeding by John C. King, executor of the alleged will of Emilie Lack, deceased, and others, against Maggie Gilson and others, to establish as the last will and testament of deceased a certain writing. From a judgment in favor of contestants, proponents appeal. Reversed.

Kinealy & Kinealy, John M. Wood, and R. L. McLaran, for appellants. Isaac H. Orr, William H. & Davis Biggs, and Benj. H. Charles, for respondents.

BRACE, P. J.

This is a proceeding commenced in the circuit court of the city of St. Louis, on the 5th of April, 1901, to establish as the last will and testament of Emilie Lack, deceased, the following instrument in writing, to wit:

"I, Emilie Lack, of the city of St. Louis and state of Missouri, being of sound and disposing mind and memory, do make this my last will, hereby revoking all former wills and codicils:

"(1) I give and bequeath three hundred dollars to Finis Lack, son of my former husband.

"(2) In consequence of attempts of my nephew Gus A. V. Brecht to defraud me out of my property and leave me, in my old age, dependent on him or others, if he had succeeded, and because of the behavior of his brothers, my nephews, Frank Brecht and Charley Brecht, towards me since the death of my husband, it is my will that neither the said Gus A. V. Brecht, Frank Brecht, nor Charley Brecht shall receive anything from my estate; and, as almost my only object and intention in making this will is to prevent the said Gus A. V. Brecht, Frank Brecht, and Charley Brecht from inheriting or obtaining, in any manner, any of my property, it is my will and desire that all my property, of every nature and kind, remaining after payment of said three hundred, shall be distributed as provided by law of this state concerning descents and distributions of the estates of intestates, save and except that the said Gus A. V. Brecht, Frank Brecht, and Charley Brecht shall not, collectively or individually, receive any of my property whatever, directly or indirectly, and shall not in any way direct or participate in its administration or distribution.

"(3) I appoint John A. King, of said city of St. Louis aforesaid, executor of this, my last will, and request that he shall not be required to give any bond as such executor.

"In witness whereof, I, the said Emilie Lack, have hereunto set my hand, at said city of St. Louis and state of Missouri, this 13th day of September, A. D. 1893.

                                           "Emilie Lack
                

"Signed and published and declared by the said Emilie Lack to be her last will and testament, in the presence of us, the undersigned, who, at her request and in her presence and in the presence of each other, have hereunto signed our names as witnesses thereto and unto said will.

                                     "Geo. A. Slattery
                                     "Maurice A. Smith."
                

This instrument was presented to the probate court for probate, and was by said court rejected, and the following instrument in writing admitted by said court to probate as the last will and testament of the said Emilie Lack:

"I, Emilie Lack, née Brecht, of St. Louis, Mo., wife of Rev. Fredk. Lack, being in good health and of sound and disposing mind and memory, but mindful of death, feel it my duty to make and publish this, my last will and testament, hereby revoking all other wills and codicils by me at any time made.

"First. I have loaned to my brother, Gus V. Brecht, $2,000, to be used by him during his natural life, without interest; on his death it is my will that said two thousand dollars be equally divided between his three sons, Gustav, Frank, and Karl (called Charles). The above loan is represented by a certain note of my said brother, dated May 11, 1887, for two thousand dollars, in which these conditions are recited. In order that this bequest may be carried out, I hereby give and bequeath to the said Gustav, Frank, and Karl Brecht (three sons of Gus V. Brecht), share and share alike, the above-mentioned note of their father for two thousand dollars.

"Second. I give and bequeath to my half-sister, Ida King, née Brecht, wife of John King, of St. Louis, Mo., my gold watch and chain, my diamond earrings set in black jet, my gold bracelets, but no money, as she and her family are well provided for.

"Third. To the `Board of Missions of the Cumberland Presbyterian Church,' a benevolent corporation of St. Louis, Missouri, I give and bequeath the sum of five hundred (500) dollars to be passed to the credit of and become a part of the `Church Erection Fund' of said board.

"Fourth. I give, devise, and bequeath to my beloved husband, Fredk. Lack, with whom I have lived in perfect love and union for many years, all the rest and residue of my estate, real and personal and mixed, wheresoever situated, to be held and enjoyed by him during his natural life, subject, however, to the following conditions: (1) He shall pay to my sister, Bertha Alexander, née Brecht, of St. Louis, Missouri, forty dollars ($40) per month during her natural life out of the income of said estate, and (2) to my half-brother, Oscar Brecht, of St. Louis, Missouri, the sum of twenty dollars per month during his natural life out of said income.

"Fifth. If my said husband should die during the lifetime of said Bertha Alexander or Oscar Brecht, then so much of the property hereby devised and bequeathed to my said husband as remains in his hands undisposed of at this time of his death shall vest in and become the property of Wm. H. Black, pastor of the Lucas Ave. Cumberland Presbyterian Church, of St. Louis, Mo., who shall hold the same in trust for the following uses: (1) He shall pay to Bertha Alexander, if living, the sum of forty dollars per month, and to Oscar Brecht, if living, the sum of twenty dollars per month during their respective lives out of the income of my estate in his hands. (2) The rest of said income he shall pay to Maggie A. Gilson, née Lack, or her children, one half; and the other half to Finis E. Lack, or his children, both of Paducah, Kentucky. (3) After the death of both Bertha Alexander and Oscar Brecht, said trustee shall convey in fee simple and deliver one half of all my estate remaining in his hands to said Maggie A. Gilson or her children, and the other half to said Finis E. Lack or his children.

"Sixth. Should my said husband survive both Bertha Alexander and Oscar Brecht, then so much of my estate as remains in his hands undisposed of at the time of his death shall vest in and become the absolute property of Maggie A. Gilson and Finis E. Lack and their children as above expressed.

"Seventh. Should I survive my husband, Bertha Alexander, and Oscar Brecht, then it is my will that all my property, except the legacies mentioned in the first, second, and third clauses of this will, shall, upon my death, descend to and become the absolute property of the said Maggie A. Gilson and Finis E. Lack or their children in equal parts. The above is because of the love and affection I bear my dear husband, and because of the never failing kindness and consideration he has shown me during our happy married life that I have chosen his children and their children as the object of my bounty.

"Eighth. I hereby nominate and appoint Fredk. Lack, my husband, the executor of my...