McFadin v. Catron
| Decision Date | 02 February 1897 |
| Citation | 38 S.W. 932,138 Mo. 197 |
| Parties | McFadin v. Catron et al., Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied 138 Mo. 197 at 227.
Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.
Reversed.
John E Burden and Boyd & Murrell for appellants.
(1) The court erred in permitting plaintiff to prove a contract of testatrix with negro Hall to leave him a home. The Supreme Court had determined this question improper. McFadin v Catron, 120 Mo. 266. (2) In offering testimony as to altercation between plaintiff and defendant James H. Catron when they were children. (3) The trial court committed error to the prejudice of defendant in refusing to admonish the attorney for plaintiff for introducing the prejudicial questions and offers of proof above mentioned. (4) Incompetent evidence, although subsequently withdrawn by instructions, will work a reversal in cases where the evidence is of such a character and the whole case so presented as to induce the belief that the jury may have been influenced by its erroneous admission. Dillingham v Russell, 15 Am. St. Rep. 753. (5) When the verdict is the result of prejudice, it will be set aside. Winkley v Foye, 66 Am. Dec. 715, and notes page 718; Spohn v. Mo. Pac. R. R., 87 Mo. 74; Garrett v. Greenwell, 92 Mo. 125; Whitsett v. Ransom, 79 Mo. 258; Walton v. K. C. R. R., 49 Mo.App. 620; Flanders v. Green, 50 Mo.App. 371. (6) The rule that the proof of contradictory statements goes to the credibility of the witness does not extend so far as to introduce previous expressed opinions of the witnesses. 1 Thompson on Trials, sec. 493; McFadin v. Catron, 120 Mo. 264; Harper v. St. Louis R. R., 47 Mo. 567, 581; Boatman's Savings Bank v. Overall, 16 Mo.App. 510; Coble v. McDaniel, 33 Mo. 363; Dunn v. Altman, 50 Mo.App. 231, 238; Holmes v. Anderson, 18 Barb. 420; Comm. v. Mooney, 110 Mass. 99. (7) The trial court erred in admitting in evidence the declarations of Martha Catron as to the intention and wishes of Minitree Catron, her husband, and that she held the property in trust for the benefit of her children and intended to carry out her husband's wishes. Rule v. Maupin, 84 Mo. 587. This proceeding is to contest the paper propounded as Martha Catron's will and not the will of Minitree Catron. The evidence must correspond with the allegations and be confined to the issue. 1 Greenleaf Ev., sec. 51; Champlin v. Champlin, 136 Ill. 309. (8) The trial court erred in admitting over defendant's objections the following testimony: The statement of defendant made during the late war "that his mother would marry again and he would never get any of her property;" that defendant said in 1854 that he was going to separate his sister from her husband and had succeeded; that defendant, Henry Catron, carried the keys by order of his mother on her deathbed; opinion as to defendant, Henry Catron, having charge of the keys to the bureau drawer; statement as to the wealth of defendant, which he had accumulated by his own thrift; conclusion and opinion of Tom Catron that defendant "assumed" control of administering medicines; that defendant did not visit his sister, but hated her; that plaintiff was guilty of no unkindness or discourtesy to her brother, submitting to the jury the personal relation of plaintiff and defendant; testimony about obituary notice said to be written by defendant; testimony that several months after the will was made Henry Catron threatened to commit suicide if his mother did not consent for Tom Catron to come there and reside and wait upon her; evidence that defendant in the last sickness of his mother, ten months after the will was executed, put alcohol, stupefying medicine, on his mother's head; declarations of defendant eight months after the will was executed concerning the nursing and care of his mother; question as to why defendant moved to Ray county in 1865; statement in presence of jury as to inscription on tombstone of testatrix; that defendant did not ask his sister to wait on the testatrix in her last sickness, and was afraid that plaintiff would poison her mother; statement that defendant only visited his mother once a year; declaration of testatrix made after the will had been executed some eight months "that Henry is here after my money;" "when I am gone you will see;" that testatrix did not want defendant to come to her home in her last sickness; that plaintiff was willing for him to come but testatrix reproved her for it; declaration of testatrix "not to trust Henry and Terhune but to trust Tom Catron;" evidence as to a proposed compromise for peace and friendship between the parties; question to defendant as to any acts of unkindness by his sister, the plaintiff, and their personal relations. (9) "The acts must be connected with the will and shown to have produced it." Tingley v. Cowgill, 48 Mo. 297; Ketchum v. Stearns, 8 Mo.App. 69, 70; affirmed in 76 Mo. 396. (10) These declarations were too remote and did not tend to prove the state of the mind of testatrix at the time of the execution of the will, and could not be used to prove the truth of the facts contained in the declarations and were not admissible on the question of undue influence. Gibson v. Gibson, 24 Mo. 227; Spoonemore v. Cables, 66 Mo. 579; Rule v. Maupin, 84 Mo. 587; Boylan v. Meeker, 4 Dutch. 274; Kitchell v. Beach, 35 N.J.Eq. 446. (11) The trial court committed error in admitting the hypothetical question to be propounded to the expert witnesses, Drs. Whitten and Alexander, and the answers to the same, there being no facts in the case to justify the opinion of medical experts. The opinions of the witnesses that the mind of the testatrix was failing amounts to nothing, as a mind may be in a failing condition and yet possess testamentary capacity. The opinions of other witnesses that she was weak-minded or childish are based on no facts and consequently worthless. The hypothetical question must embrace facts in evidence. Rankin v. Rankin, 61 Mo. 301; Stackhouse v. Horton, 15 N.J.Eq. 228; Kerr v. Lunsford, 8 S.E. 493, and notes; Russ v. Railroad, 112 Mo. 45. The trial court committed error in admitting in evidence the testimony of plaintiff as to why she sold the Carroll county lands. One reason assigned by the testatrix why she did not devise the plaintiff land is, that she sold the Carroll county land which her father had given her. "The question as to whether the testatrix's reason or motive for making her will as she did, whether they are good or judicious, is immaterial and can not be investigated." Stackhouse v. Horton, 15 N.J.Eq. 227; In re will of John Gluspin, 26 N.J.Eq. 529. (12) The trial court committed error in admitting the evidence and impeaching questions to witness, after the defendant had finally closed. Rankin v. Rankin, 61 Mo. 299. (13) Evidence of statements made by a witness out of court, when received to impeach his contrary testimony in court, can not be treated as independent evidence, that is, as competent evidence of the truth of the statements thus made. 1 Thompson on Trials, sec. 492; McFadin v. Catron, 120 Mo. 252; Shoninger v. Day, 53 Mo.App. 148; Harper v. R. R., 47 Mo. 567; Bank v. Murdock, 62 Mo. 70. (14) This question of testatrix's testamentary capacity ought not to have been submitted to the jury. There is no evidence of a want of testamentary capacity. The evidence is all the other way. A testator who understands the business about which he is engaged when he executes his will, the persons who were the natural objects of his bounty, and the manner in which he desires the dispositions to take effect, is capable of making a will. He need not be able to make a contract or to manage his estate. Brinkman v. Rueggesick, 71 Mo. 553; Couch v. Gentry, 113 Mo. 248; Jackson v. Hardin, 83 Mo. 175. (15) There is no evidence in this case to justify the trial court in submitting the issue of undue influence to the jury. Undue influence is that which compels a testator to do that which is against his will, through fear, through the desire of peace, or through the exercise of some coercive power which he is unable to resist, and but for the exercise of which the will would not have been made as it was. It is not sufficient that the undue influence exists to invalidate a will; it must be exerted and exercised over the mind of the testator at the time of the testamentary act. Undue influence amounts to nothing unless the will is made contrary to the intention of the testator. Sunderland v. Hood, 84 Mo. 293; Ketchum v. Stearns, 8 Mo.App. 70. (16) Opportunity and interest are not facts from which undue influence can be presumed. Kitchell v. Beach, 35 N.J.Eq. 454; Boylan v. Meeker, 4 Dutch, 288; Turnure v. Turnure, 35 N.J.Eq. 437. (17) Undue influence is not a presumption, but a conclusion. Kise v. Heath, 33 N.J.Eq. 244; Lawson's Presump. Ev. 569. (18) The will having been executed with due formality, the testatrix having been at the time of competent understanding, the burden of the proof of undue influence is on the contestant. Maddox v. Maddox, 114 Mo. 35; Wheeler v. Whipple, 44 N.J.Eq. 141; Jones v. Roberts, 37 Mo.App. 163. (19) In determining whether a will is procured by undue influence, it is proper to see if the dispositions are in harmony with testator's intentions and affections. Allen v. Pub. Adm'r, 1 Bradford, 378; In re Hess's Will, 31 Am. St. Rep. 665-670; In re Gideon Humphrey Will, 26 N.J.Eq. 513; Collins v. Osburn, 34 N.J.Eq. 521. (20) The second instruction for plaintiff is prejudicial in that it assumes that these were persons "dependent" on her bounty, calling the attention of the jury by the word "dependent" to the plaintiff as the mother of ten children, and as owning only a small estate. (21) The instruction declares that the burden of proof of...
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