McFadin v. Catron

• Citation: 25 S.W. 506,120 Mo. 252
• Parties: McFADIN v. CATRON.
• Decision Date: 13 February 1894
• Court: United States State Supreme Court of Missouri

25 S.W. 506

120 Mo. 252

McFADIN v. CATRON.

Supreme Court of Missouri, Division No. 2.

February 13, 1894.

WILLS — TESTAMENTARY CAPACITY — CONTEST — UNDUE INFLUENCE — EVIDENCE — BURDEN OF PROOF — WITNESS — INSTRUCTIONS.

1. Testatrix, who was 83 years old, prior to making her will, had been suffering with a cancer, which caused great mental anxiety and physical suffering, and she was slightly failing in memory. She attended to her business, and had accumulated a large amount of property by her prudent management of her large farming interests. Twenty years before making the will in question, she had made a nearly similar one. Held, that she had testamentary capacity.

2. On a will contest, statements of a witness to the will, who has testified favorably as to the testatrix's mental capacity, to the effect that if all the facts were known the will could be broken, are inadmissible, since, to impeach a witness by contradictory statements made out of court, these must not only relate to the issue, but be statements of fact, and not opinions.

3. A witness cannot be interrogated on a subject not pertinent to the issue, for the purpose of discrediting him.

4. Where property is left to a wife by will, with full power of disposal, no verbal statements or requests by testator will in any manner control her disposition of the property.

5. In an action to set aside a will, evidence of the financial standing of plaintiff and defendant is admissible, if kept within reasonable bounds.

6. Evidence of the sentiment of the public as to the unjustness of the will is inadmissible.

7. Evidence of the parsimonious conduct of the chief beneficiary in making the funeral arrangements is inadmissible.

8. Incoherent utterances of the testatrix on her deathbed are inadmissible.

9. Declarations of testatrix concerning threats made by the chief beneficiary in the will are inadmissible.

10. A wife is not a competent witness to prove what was said in a conversation between her husband and another, nor to prove any fact done in connection with such conversation, and which might be influenced thereby.

11. Unjust discrimination in a will does not, by itself, put the burden of proving the absence of undue influence upon the proponent, if the facts in proof suggest a reason for such discrimination; but it is otherwise when the reason is not shown by the will, and there is evidence of undue influence.

12. The natural love a parent may have for one child above the others, however great, is no ground for setting aside her will.

13. The influence which would be necessary in such case to invalidate the will must amount to overpersuasion, coercion, or force, destroying the free agency or will of the testator.

14. The fact that one of her children lives 200 miles from the testatrix, and visits her only two or three times a year, does not throw on him the burden of showing the absence of undue influence in procuring a will in his favor.

15. The formal proof of the due execution of a will must be made by the proponent, although it has already been admitted to probate.

16. It is proper to instruct that the jury may disregard the testimony of any witness who, in their opinion, has willfully sworn falsely to any material fact in issue.

Appeal from circuit court, Saline county; Richard Field, Judge.

Action by Frances E. McFadin against James Henry Catron. From a judgment for plaintiff, defendant appeals. Reversed.

John E. Burden and Boyd & Murrell, for appellant. J. D. Shewalter and Wallace & Chiles, for respondent.

BURGESS, J.

This is a suit to set aside the will of Martha Catron, late of Lafayette county. The venue was changed to Saline county on application of defendant. The will bears date June 2, 1890, and she died on the 30th day of March, 1891, at the advanced age of about 83 years. She left surviving her two children, — a daughter, Frances E. McFadin, and a son, James Henry Catron. By the terms of the will, she gave to George M. Catron, trustee, and his successors named in the will, $5,000 in trust for the use of her daughter during her life, and at her death to her children absolutely, and gave the residue of her estate, amounting, including lands, money, and personal property, to about $5,000, to her son, James Henry. The will is assailed on two grounds: First, want of mental capacity on the part of the deceased; and, second, fraud and undue influence exercised by James Henry Catron. The trial resulted in a verdict setting aside the will.

There was a vast amount of evidence introduced, much of which was irrelevant, and had no bearing whatever on the issues involved. The husband of Martha Catron died testate in August, 1862, of his own act, leaving to her the lands in question, and all of his personal property. In 1867 the testatrix executed a will whereby she gave to her daughter $4,000 for her sole use and benefit, and to the benefit of her children, heirs of her body, and then gave all the residue of her personal property to her son, absolutely, and her estate to him during his natural life, with remainder to his children. She is shown to have been a woman of more than ordinary strength of mind and determination, and attended to her property and business affairs partly herself, and partly through others. She, by her successful management, accumulated about $17,000 worth of property after the death of her husband, and before hers, during all of which time she lived on a farm about five miles from Lexington, which was devised to her by him. A day or two before she made her will, she sent a message to George M. Catron, a nephew of her deceased husband, requesting him to come to her house. On the 2d day of June, he arrived there, and when he reached the house found his brother James F. Catron and Lock Terhune in the room with Mrs. Catron. After a short time they left the room, leaving George M. Catron and the testatrix alone in the room. The testatrix then requested him to write her will, and told him how she wanted to dispose of her property, and he wrote it as she directed, no other person being in the room. After it was written, James F. Catron, Lock Terhune, and Mary Terhune, at the request of the testatrix, came into the room, when she stated to them that she had made her will, and desired them to witness it. She signed it in their presence, and they then signed it, as witnesses, in her presence, and in the presence of each other. She then had a cancer on her breast, but was able — and for some time thereafter — to dress the cancer, and dress and take care of herself. There was some evidence tending to show that the mother did not entertain the same tender affection and regard for her daughter that she did for her son. The daughter lived at the time of the execution of the last will in the same neighborhood with her mother, while the son lived at that time, and has since 1865, in Nebraska City, but he visited his mother once or twice a year. The son was at his mother's house a short time before the will was executed, but at the time of its execution he was at his home, in Nebraska City, 200 miles away, and had no information that the will had been made until he returned to his mother's home, about two weeks after. The will of 1867 was delivered by the testatrix to her son, and remained in his possession for 22 years before the last one was made. Evidence was introduced of declarations made by the testatrix at different times for several years, to shortly before her death, to the effect that the McFadins should have none of her real estate, and not more of her personal estate than the amount given her daughter by the will. All of the witnesses to the will testified to the sound mental condition of the testatrix at the time of its execution, in which they were corroborated by other witnesses. Defendant was quite wealthy, being worth about $100,000. While the plaintiff's husband owns a farm, she had no property, except 40 acres of land, worth about $1,600.

It is insisted by counsel for defendant that the trial court committed error in allowing the plaintiff to propound questions on their cross-examination of Lock Terhune, Mary Terhune, and Belle Shelby, who were witnesses for defendant, concerning certain statements and opinions made and expressed by them, and in allowing the answers to such questions to be received in evidence, over defendant's objections, as proof of the truth of the facts stated in such statements and opinions. The following questions and answers of Lock Terhune will sufficiently illustrate the point: "Q. Did you not say, about two weeks after the probate of the will, in front of Trigg's store, in Lexington, Mo., to and in the presence of Judge T. A. Catron, — in talking about that business with Henry, say — `Henry had better mind what he is doing. I know enough facts to break that will,' or words to that effect? A. I did not say any such word. Me and Tom Catron had a talk about it. Q. Did you not say to and in the presence of Tom Catron, a short time after the sale of the personal property, just near the railroad crossing, in answer to a statement of T. A. Catron, that the will was very unjust and unchristian, say, and `it can be broken, if the facts are gotten all right,' or words to that effect? A. Not in those words. Q. Did you not, in the conversation with W. M. N. Green, in Lexington, in front of Trigg's store, three or four days after Mrs. Catron's death, when Green asked you if she had made a will, reply that: `It will not stand. They will break it. Henry used too much influence to have her to make the will the way he wanted it.' That Henry went so far as to say that, if his mother did not make her will to suit him, that he would commit suicide? A. Mr. Green and I had a conversation, but not in those words. I have a conversation with him when I go to town, because I am almost sure to meet him." With reference to the last question, W. M. N. Green, a witness for plaintiff, was asked whether he...