Lindsay v. Shaner
| Decision Date | 31 December 1921 |
| Parties | ADA LINDSAY et al., Appellants, v. GEORGE F. SHANER et al |
| Court | Missouri Supreme Court |
Appeal from St. Francois Circuit Court. -- Hon. Peter H. Huck Judge.
Affirmed and remanded.
O. L Munger and E. C. Edgar for appellant.
(1) In all transactions between persons in whom confidence is naturally inspired, is presumed, or in fact reasonably exists, the burden of proof is thrown upon the persons in whom the confidence is imposed to show affirmatively that no deception was practiced; that no undue influence was used that all was fair, open, voluntary and well understood. Egger v. Egger, 225 Mo. 137. (2) Undue influence need not be shown by direct proof, but may be inferred from facts and circumstances, such as the relation of the parties, the mental condition of the deceased and the character of the transaction. Mowry v. Norman, 204 Mo. 173; King v. Gilson, 191 Mo. 327; Roberts v. Bartlet, 190 Mo. 680; Bradford v. Blossom, 190 Mo. 110; Dausman v. Rankin, 189 Mo. 703; Doughterty v. Gilmore, 136 Mo. 414; Bush v. Bush, 87 Mo. 482. (3) Where there is evidence of undue influence, the burden of proof is upon the proponents. Mowry v. Norman, 223 Mo. 463; Bradford v. Blossom, 190 Mo. 143; Hegney v. Head, 126 Mo. 629. (4) Where the will is unreasonable in its provisions and inconsistent with the duties of the testator with reference to his property and family, this, of itself, will impose upon those claiming under the instrument the necessity of giving some reasonable explantation of the unnatural character of the will. Mowry v. Norman, 204 Mo. 192; McFaddin v. Catron, 120 Mo. 271; Gay v. Gillilan, 92 Mo. 264; Benoist v. Murrin, 58 Mo. 312. (5) It is a suspicious circumstance that the principal beneficiary writes the will, and undue influence may be inferred therefrom. Roberts v. Bartlet, 190 Mo. 702; Harvey v. Sullens, 46 Mo. 151; Carl v. Gabel, 120 Mo. 297.
James C. Shaner and B. H. Boyer for respondents.
(1) While the question of testamentary capacity is eliminated from the case by the verdict of the jury, yet, reviewing the record, it will be seen that there was not only a total failure of proof on the part of contestants as to the lack of such capacity, but overwhelming proof thereof. Gibson v. Gibson, 24 Mo. 227; Riley v. Sherwood, 144 Mo. 364; McFadin v. Catron, 138 Mo. 197; Current v. Current, 244 Mo. 436; Southward v. Southward, 173 Mo. 59; Archbaldt v. Blanchard, 198 Mo. 425; Richardson v. Smart, 152 Mo. 636; Lynch v. Doran, 95 Mich. 409; Sohr v. Lindemann, 153 Mo. 276; Thomasson v. Hunt, 185 S.W. 169; Sanford v. Holland, 207 S.W. 818. (2) On the question of undue influence the law in this State is amply stated in Riley v. Sherwood, 144 Mo. 366; Thompson v. Ish, 99 Mo. 182; Gibson v. Gibson, 24 Mo. 227; McFadin v. Catron, 138 Mo. 218; Sunderland v. Hood, 84 Mo. 293; Maddox v. Maddox, 114 Mo. 36; Riley v. Sherwood, 144 Mo. 366; Seibert v. Hatcher, 205 Mo. 97; Sinnett v. Sinnett, 201 S.W. 887; Sanford v. Holland, 207 S.W. 818; Carl v. Goebel, 120 Mo. 283; Current v. Current, 244 Mo. 436; Southward v. Southward, 173 Mo. 72; Sohr v. Lindemann, 153 Mo. 289; Thomasson v. Hunt, 185 S.W. 167; Gibson v. Foster, 230 Mo. 136. (3) Evidence purporting to show undue influence or incapacity is searched with a critical eye. Turner v. Anderson, 260 Mo. 17, 31. (4) The testimony relative to previous wills made by testator and the disposition he sought to make of his property thereby is very pertinent and significant. Thompson v. Ish, 99 Mo. 182; Sinnett v. Sinnett, 201 S.W. 887. (5) The declarations attributed to testator by the witnesses for plaintiffs both before and after the time of the signing of the will were incompetent for the purpose of establishing undue influence. Gibson v. Gibson, 24 Mo. 228; Cawthorne v. Hayne, 24 Mo. 236; Andrew v. Linebaugh, 260 Mo. 649; Teckenbrock v. McLaughlin, 209 Mo. 547; Hays v. Hays, 242 Mo. 170; Siebert v. Hatcher, 205 Mo. 97; Thompson v. Ish, 99 Mo. 170.
REEVES, C. Railey and White, CC., concur.
The action is a will contest. It involves the usual grounds of testamentary incapacity and undue influence. The issue was made up, as provided by statute, and submitted to a jury. The jury favored the proponents of the will on the question of testamentary incapacity, and determined adversely to them on the question of undue influence. Proponents moved for a new trial and were successful, whereupon contestants have prosecuted their appeal to this court from the order granting a new trial.
In the order allowing a new trial, the trial court did not specify of record, as required by statute, the grounds on which said new trial was granted, but the bill of exceptions shows that upon oral request the court justified his action as follows:
"That under the definition the courts give us of 'undue influence,' there is no evidence, or no sufficient evidence, to that effect."
Appellants had made a request in writing upon the trial court, in passing upon said motion for a new trial, "to make his findings in writing, stating separately his findings of fact and his findings of the law, as in such cases made and provided by statute."
It was in response to this request that the court made his oral assignment. There is nothing in the statute warranting a request upon the trial court, as above specified. Section 1402, Revised Statutes 1919, makes it the duty of the trial court, at the request of the parties, to state in writing the conclusions of facts found separately from the conclusions of law, where questions of fact are tried by the court. In this case the court was simply passing on the verdict of a jury, and the statute, Section 1454, Revised Statutes 1919, required him to specify the grounds upon which he granted a new trial, but his failure to do so did not invalidate his action and in such case this court may consider all the grounds enumerated in the motion for a new trial. [Metropolitan Co. v. Webster, 193 Mo. 351, 92 S.W. 79.]
However, as the parties have presented the case here upon the theory that the question of insufficient evidence was the only question in the case and as the motion for a new trial properly challenged the sufficiency of the proof to warrant submission of the case to the jury, we shall dispose of the case in accordance with the theory of the litigants and particularly as our view of the case upon that question precludes the necessity of considering other matters raised in the motion for a new trial.
At the beginning of the trial the proponents of the will offered testimony tending to show its execution on March 9, 1919, and that the testator was sane and of lawful age. This was an effort conformable to our procedure to establish a prima-facie case. [Teckenbrock v. McLaughlin, 209 Mo. 533, 539, 108 S.W. 46; Campbell v. Carlisle, 162 Mo. 634, 644, 63 S.W. 701; Maddox v. Maddox, 114 Mo. 35, 46, 21 S.W. 499; Mowry v. Norman, 204 Mo. 173, 103 S.W. 15.]
Thereupon appellants, as contestants below, offered the following testimony in support of their contention that the testator was mentally incapable at the time of executing the will and acted upon the compulsion of undue influence. Contestants are brother, sister, nephews and nieces of testator, and Mrs. Warner Jackson, not related, and contestees are a brother, nephews and a niece.
Irvin J. Shaner was the testator. Though forty-eight years of age at the time of his death, he was a midget in size, being little more than thirty inches tall. Admittedly a shrewd business man, possessing the mentality of a mature man, he had accumulated considerable property, valued at from fourteen to fifteen thousand dollars. Early in life, for his livelihood, he sold photographs of himself and a kinsman of large stature, but later he became a photographer and was engaged in that business at the time of his death. He owned real estate, had several investments and was a member of the board of directors of the Citizens' Bank of Desloge, Missouri, where he lived. He had several brothers and sisters, some living, some dead, and many nieces and nephews. On the 28th day of February, 1919, the "little man," as he was affectionately called and generally known, became ill with the "flu." At first he only complained, finally taking to his bed. He had a room, described as a little room, with a little bed in it, in the building owned by him and used as his studio. There was a residence on the same lot also owned by him, occupied by Mrs. Blanche Jackson, as his tenant, and with her testator boarded.
Mrs. Martha Pigg Drier testified for contestants that she was a nurse by profession and knew the testator; that on March 6, 1919, she was called to nurse him; that he was suffering with pneumonia and that she remained with him until he died, at three minutes before five o'clock on Monday morning, March 10, 1919; that during the time George F. Shaner, sometimes known as Fisher Shaner, one of the contestees and a brother of the testator, was there; that "he was there quite often during the day and night, too;" that he had conversations with witness regarding the condition of testator and talked with witness regarding the necessity of his brother making a will; that he had been talking with Irvin, the testator, about making the will, and asked witness to speak to Irvin about it; that he came to her several times asking to speak to Irvin about the will, "but he didn't discuss how he wanted the will made or anything of that kind." Witness was not present at the time the will was executed.
Mrs Blanche Jackson, one of the beneficiaries under the will, testified that she lived in Desloge in a residence owned by the testator and that she was named as a devisee in the will; that she had...
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