Lane v. St. Denis Catholic Church of Benton

• Citation: 274 S.W. 1103
• Decision Date: 13 August 1925
• Docket Number: No. 3593.,3593.
• Parties: LANE et al. v. ST. DENIS CATHOLIC CHURCH OF BENTON et al.
• Court: Court of Appeal of Missouri (US)

274 S.W. 1103

LANE et al. v. ST. DENIS CATHOLIC CHURCH OF BENTON et al.

No. 3593.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Action by Andrew Lane and others against the St. Denis Catholic Church of Benton, Mo., and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

B. Hugh Smith, of Cape Girardeau, and Bailey & Bailey, of Sikeston, for appellants.

Ward & Reeves, of Caruthersville, and Ray B. Lucas, of Benton, for respondents.

BAILEY, J.

This suit is to set aside the will of Terese Lane, deceased, on the grounds of mental incapacity of the testatrix and undue influence in its procurement. The issue of undue influence was taken from the jury by peremptory instruction, and the jury's verdict was for the proponents of the will on the other issue. From the judgment, basal thereon, plaintiffs appeal.

The petition sets out that the St. Denis Church is a religious organization, of Catholic faith, located at Benton, Missouri; that defendant, C. J. Hoffschwelle, is Father of the parish of St. Denis Church, and is now the executor of the estate of Terese Lane; that the other defendants constitute the board of trustees of said St. Denis Church; that plaintiffs Andrew Lane, William Lane, and Annie Meyer are the children and the sole and only heirs at law of Terese Lane, deceased, who died in Scott county about February 1, 1923; that on October 21, 1919, the date the writing was made purporting to be her last will, the said Terese Lane was not of sound mind; that she was old and infirm, being 75 years of age; that she had received a physical injury as the result of a runaway horse, which injury was followed by a paralytic stroke; that Father Fitzkam, who at the time of signing the alleged will was pastor of St. Denis Catholic Church, was the spiritual adviser of said Terese Lane; that on that account he had an undue influence over her, and that by persuasion and the exercise of said influence he caused her to execute the writing, transferring all the property to him and his successor for the benefit of said church. The answer consisted of a general denial and special averments that the paper writing was her last will and testament.

By the terms of the will, each child, plaintiffs herein, was bequeathed $5. The will then provides as follows:

"Fourth. All the remainder of my estate, real, personal or mixed, I give and bequeath to the Father of the parish or his successor in charge of the Benton, Missouri, Catholic Church, to be used by said Father of the parish as he may see proper for the use and benefit of said Catholic Church, in improving buildings, or for any other good purpose connected with said church.

"Fifth. I hereby appoint the Father of the parish of said Benton Catholic Church to be executor of this my last will, and request that he act as such executor without bond."

Plaintiffs assign as error the giving of a peremptory instruction at the close of plaintiffs' case taking from the jury the question of undue influence. Defendants had previously made a prima facie case establishing the will. If there was no substantial evidence upon which the jury might base a verdict finding undue influence in fact or presumptively, the peremptory instruction should have been given the same as in any ordinary suit at law. Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46.

The evidence, adduced by plaintiffs most favorable to them on this point, indicates that Terese Lane, to whom we shall hereafter refer as the testatrix, was about 75 years of age at the time the alleged will was executed in October, 1919. She was a member of the Catholic Church and ardently advocated the doctrine of that church to the utter exclusion of other religions. Her church was the chief subject of her conversation at any and all times, and her tirades against those of other faith were frequently embellished with choicest oaths. For some time prior to the making of the will she was unable to attend her church with any degree of regularity, and the priest, Father Fitzkam, visited her several times, at intervals, before the will was made. Only one witness, Matilda Sherer (a Catholic who lived next door), testified in regard to these visits, and then only to the extent that she saw him there several times before the will was made and once afterwards. On cross-examination, she testified it was a part of the business of the priest to visit the parishoners as they got older and more afflicted; that the testatrix always spoke well of the priest, and never at any time told this witness that he had ever mentioned anything about a will to testatrix, although the witness was on rather intimate terms with testatrix. The priest, Father Fitzkam, did not live in Benton at the time of the trial, and there is no evidence as to just when he left that place. This is mentioned for the reason plaintiffs contend the ceasing of his visits was some indication of an ulterior motive in his visits to testatrix prior to the execution of the will.

After carefully reviewing this evidence we are of the opinion the trial court could not have well refused the peremptory instruction on undue influence. There is, admittedly, not one word of direct evidence that any influence whatever was used to persuade the testatrix to dispose of her property in the manner she attempted by this alleged will. Plaintiffs contend, however, that undue influence need not be proved by direct and positive evidence, but it is sufficient if it is shown by, or can be inferred from, the facts and circumstances in evidence citing Roberts v. Bartlett, 190 Mo. 680, 89 S. W. 858, and other cases. That principle cannot be questioned, but here we have no evidence upon which an inference of undue influence might be based, unless it be the fact that the priest, Father Fitzkam, was the spiritual adviser of testatrix. Plaintiffs contend the priest occupied a fiduciary relation to testatrix, and that the burden of proof was shifted to defendants to show that undue influence did not exist. The record does not disclose that this argument or theory was ever presented to the trial court, in fact, instruction No. 7, offered by plaintiffs and refused, rather indicates plaintiffs had no such theory in mind. Be that as it may, we do not believe the facts before us bring this case within the well-recognized rule set forth in Mowry v. Norman, 204 Mo. 178, 103 S. W. 15, which seems to be the case chiefly relied on by plaintiffs with reference to this point..

In the Mowry Case, all the property was left to a son with whom the...