McNealey v. Murdock
| Decision Date | 14 March 1922 |
| Citation | 239 S.W. 126,293 Mo. 16 |
| Parties | ROBERT A. McNEALEY et al. v. LILLY L. MURDOCK, Appellant |
| Court | Missouri Supreme Court |
Appeal from Sullivan Circuit Court. -- Hon. V. L. Drain, Judge.
Affirmed.
John W Clapp, Charles E. Murrell and Shelton & Shelton for appellant.
(1) Undue influence such as will justify the setting aside of a will, is such influence as amounts to over-persuasion coercion, or force, destroying the will-power of the testator and substituting therefor the will of the actor. It is not merely the influence of affection, nor the desire of gratifying the wishes of one beloved or trusted by the testator. Such undue influence must not only exist, but it must be shown by affirmative proof to have been actually exercised by the actor at the very time the will was executed. Kibby v. Kamp, 154 Mo. 545; Hays v Hays 242 Mo. 155; Turner v. Butler, 253 Mo. 202; Padgett v. Pence, 178 S.W. 205; Gibony v. Foster, 230 Mo. 106; Kleinlein v. Krauss, 209 S.W. 933; Lindsey v. Stephens, 229 Mo. 600; Dausman v. Rankin, 189 Mo. 677; Hahn v. Hammerstein, 272 Mo. 248; Teckenbrock v. McLaughlin, 209 Mo. 533. (2) Evidence that children consulted by testator concurred in his opinion that another child should be disinherited if he had said what had been attributed to him, is not evidence of undue influence; that is, of improper influence such as to destroy his free agency. Spencer v. Spencer, 221 S.W. 58. (3) Plaintiff's Instruction 5 is erroneous because it in effect and in fact does tell the jury that if the will of deceased shows any inequality in her bounty as among her children, or discriminates, and such inequality or discrimination is unexplained, their verdict should be to the effect that the will was not in fact the last will and testament of testatrix. Spencer v. Spencer, 221 S.W. 58; Andrew v. Linebaugh, 260 Mo. 662. (4) Discrimination in favor of one child over another is not of itself evidence of undue influence, but undue influence must be shown by other affirmative evidence. Where this is done it devolves upon the one alleged to have been the beneficiary of the undue influence to show that the will is the result of deliberation and spontaneity on the part of the testator, and not the result of any unholy or any undue influence on his part. Dausman v. Rankin, 189 Mo. 677. (5) The law is settled that unless there is substantial evidence upon which to bottom a verdict overturning the will, a finding to that effect cannot be maintained, and the will should be sustained. Webber v. Strobel, 236 Mo. 663; Hughes v. Rader, 183 Mo. 630; Tibbe v. Kamp, 154 Mo. 545; Jackson v. Hardin, 183 Mo. 185; Knapp v. Trust Co., 199 Mo. 640. (6) Any degree of influence over another, acquired by kindness and affection, can never constitute undue influence within the meaning of the law, and this principle applies in the case of a friend who has been made the beneficiary in a will, as well as in the case of a wife or child. Campbell v. Carlisle, 162 Mo. 634; Seibert v. Hatcher, 205 Mo. 83; Dausman v. Rankin, 189 Mo. 677. (7) The burden of proving undue influence rests upon the party attacking the will, the attack being predicated upon the charge of undue influence. Dausman v. Rankin, 189 Mo. 677; Morton v. Heidorn, 135 Mo. 608; Doherty v. Gillmore, 136 Mo. 414.
Campbell & Ellison, Barker & Jones and Calfee & Painter for respondents.
(1) Appellant's demurrer to the evidence at the close of plaintiffs' case was properly overruled. Mowry v. Norman, 204 Mo. 173; Bradford v. Blossom, 190 Mo. 110; Roberts v. Bartlett, 190 Mo. 680; Gordon v. Burris, 153 Mo. 223. (2) Appellant's demurrer to the evidence at the close of the whole case was properly overruled. (3) No error was committed in giving respondents' Instruction 5 as being a comment upon the testimony, and in conflict with Instruction 6 for appellant. Bradford v. Blossom, 190 Mo. 110; Dausman v. Rankin, 189 Mo. 677; McFadin v. Catron, 120 Mo. 252; Gay v. Gillilan, 92 Mo. 250; 1 Redfield on Wills, 516, 537; Wendling v. Bowden, 252 Mo. 647; Gordon v. Burris, 153 Mo. 223; Turner v. Anderson, 260 Mo. 1; Heinbach v. Heinbach, 274 Mo. 324; Moore v. McNulty, 164 Mo. 119.
BROWN, C. Ragland and Small, CC., concur. James T. Blair, J., not sitting.
This is a proceeding to contest an alleged will of one Virginia McNealey, who died in Sullivan County, where she had resided for many years, on the second day of September, 1917, on the alleged ground of undue influence exercised over her by her daughter, Lilly Murdock, and her husband, Samuel L. Murdock, the last named of whom died in 1911. The will purports to have been executed in Sullivan County on the 23rd day of September, 1904. Its disposing provisions are as follows:
Of the three grandchildren named in the fourth item, D. E. McNealey died before his grandmother.
The heirs at law of the purported testatrix excepting one, the daughter, Lilly Murdock, are plaintiffs, she alone being defendant. The only issue is whether or not the will is the product of undue influence exercised over the mind of Mrs. Virginia McNealey by her daughter, Mrs. Lilly Murdock, the defendant, or of her own free will. The executors named in the instrument were the son, E. S. McNealey, and Samuel L. Murdock, the husband of the defendant. The latter died before the death of Mrs. McNealey, and E. S. McNealey was duly appointed executor of the will and is made a party in that capacity, as well as in the capacity of contestant.
The estate consists principally of seven hundred and thirty-two acres of farm land, and is valued at $ 60,000. It will therefore, be seen that the two sons and two daughters named in the first and second paragraphs of the will took nearly the entire estate, while the remaining two sons and one daughter, named Mary N. J. Porter, together with the two grandchildren, daughters of the deceased son, David H., were practically disinherited.
The one hundred and ninety-two acres of the land described in the first item of the will above quoted comprised the home farm on which Mrs. McNealey had lived for many years with her husband, who died in 1888. She owned the land in her own right, and not through her husband. She never remarried. Mrs. Lilly Murdock was her oldest child and, at the time of the execution of the will, was living with her husband, Samuel L. Murdock, about a mile and a quarter from her mother's home. Mrs. McNealey is shown by the evidence to have been an active, intelligent and strong-minded woman with little education. She could write her name, and signed all checks drawn on the First National Bank of Milan, with which she did her banking business, but never undertook to write one. Mr. Murdock, her son-in-law, was a man of some education, with an inclination toward legal pursuits. For nine or ten years preceding the execution of the will he had done business for Mrs. McNealey. He rented her farm during six of those years, and during the remainder of the time up to and after the execution of the will rented it to others, drawing the contracts therefor, and advised and assisted her in her business. He had law books in his house, and wrote contracts for his neighbors whenever called upon. He seems to have been a good business man, and to have sustained an excellent reputation. He had three sons and one daughter born of his marriage with defendant.
Mrs. Murdock knew of the execution of the will at the time. Her own cross-examination on that subject is convincing, as well as interesting. Her son, John Murdock also testified for her. He was thirty years old at the time of the trial, and fifteen years old when the will was executed. He said that on the afternoon or evening...
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