Moll v. Pollack

• Citation: 8 S.W.2d 38,319 Mo. 744
• Decision Date: 09 April 1928
• Docket Number: 26287
• Parties: Fred Moll, A Minor, By Maud Harden, His Curatrix, v. Siegfried Pollack, Phillip Pollack, Mrs. Ethel Seibert, Joseph Brennan, Hady Paust Schmidt, Mrs. Haidee Gamer and Mrs. Kate Donovan, Appellants, and Haidee Lucile Idler La Driere, Robert Moll, Elizabeth Nelson, Mrs. Emma Paust, Alma Moll, Mrs. May Hickey, Bernice Lehman, Arthur M. Idler and Edna Gamble
• Court: United States State Supreme Court of Missouri

8 S.W.2d 38

319 Mo. 744

Fred Moll, A Minor, By Maud Harden, His Curatrix, v. Siegfried Pollack, Phillip Pollack, Mrs. Ethel Seibert, Joseph Brennan, Hady Paust Schmidt, Mrs. Haidee Gamer and Mrs. Kate Donovan, Appellants, and Haidee Lucile Idler La Driere, Robert Moll, Elizabeth Nelson, Mrs. Emma Paust, Alma Moll, Mrs. May Hickey, Bernice Lehman, Arthur M. Idler and Edna Gamble

No. 26287

Supreme Court of Missouri

April 9, 1928

Motion for Rehearing Denied June 21, 1928.

Appeal from Circuit Court of City of St. Louis; Hon. Wilson A Taylor, Judge.

Affirmed.

Joseph Block for appellants.

(1) A person who is twenty-one years of age, or over, having sufficient mind and memory, and acting independently of any undue or wrongful influence, fraud or deceit, has the right to dispose of his property by will in whatever manner and to whomsoever he may choose. Turner v. Anderson, 260 Mo. 31; Huffnagel v. Pauley, 219 S.W. 378. (a) Even to the extent of wholly or partially disinheriting his children. Weston v. Hanson, 212 Mo. 267; Heinbach v. Heinbach, 202 S.W. 1123; Kleinlein v. Kraus, 209 S.W. 936; Sunderland v. Hood, 84 Mo. 298. (b) Without giving any reason, or making any apology for such disposition as he may make thereof. Spencer v Spencer, 221 S.W. 61; McNealy v. Murdock, 239 S.W. 126. (c) This right, as guaranteed by the law, is not to be considered a mere expression of legislation, but the statute means what it says and is full of force and vitality. Winn v. Grier, 217 Mo. 462; Hughes v. Rader, 183 Mo. 707. (d) It follows, that neither a court or jury has the right to alter the disposition which a testator makes of his property because they may think that a testator has not done justice to his family. Tibbe v. Kamp, 154 Mo. 545; Jackson v. Hardin, 83 Mo. 175; Lorts v. Wash, 175 Mo. 487. (2) One who understands the ordinary affairs of his life, knows both the nature and extent of his property, the persons who are the natural objects of his bounty, and knows that he is disposing of his property in the manner and to the persons mentioned in his will, without the aid of any other person, is capable of making a will. Platt v. Platt, 236 S.W. 42; Carroll v. Murphy, 231 S.W. 644; Rose v. Rose, 249 S.W. 608. (a) He need not have the same perfect and complete understanding of these matters, in all their bearings, as a person in sound and vigorous health of mind and body would have. Couch v. Gentry, 113 Mo. 248. (b) Old age, Byrne v. Fulkerson, 254 Mo. 120; enfeeblement of mind, Turner v. Butler, 253 Mo. 202; failing or impaired memory, Hahn v. Hammerstein, 272 Mo. 248; or poor health, Wood v. Carpenter, 166 Mo. 465, do not preclude one from making a valid, legal will, so long as he retains sufficient mind and memory to understand the ordinary affairs of life. Major v. Kidd, 261 Mo. 607; Messick v. Warren, 217 S.W. 94. (c) Such testamentary capacity is to be judged and measured as of the exact time of the execution of the will. Evidence of soundness or unsoundness of mind prior to or subsequent to the time of the making of the will is permissible only in so far as it may have a tendency to establish the condition of the testator's mind and memory at that particular time. Rose v. Rose, 219 S.W. 609; Holton v. Cochran, 208 Mo. 426. And is of little weight against affirmative evidence of sound mind at the time of the execution of the will. Kleinlein v. Kraus, 209 S.W. 937. (d) Proof that one's mind is occasionally weakened by suffering or disease is not sufficient to avoid an act done while that condition does not exist. Platt v. Platt, 236 S.W. 41; Spencer v. Spencer, 221 S.W. 58. (e) Mere opinions of witnesses that the testator was "childish" or "acted funny" or "was worse than a child" and expressions of like import, when unaccompanied by testimony showing particular acts reasonably warranting the conclusions of the witnesses, do not make out a case of incompetency when the testimony shows that the testator knew what he was doing and to whom he was giving his property. Sehr v. Lindemann, 153 Mo. 288. (f) Scattered incidents, selected from a year or two of the daily life of the testator, mere oddities and eccentricities not necessarily referable to some seated aberration of mind, are not sufficient in law to break a will "however artistically selected, arranged and paraded." Turner v. Anderson, 260 Mo. 32; Huffnagel v. Pauley, 219 S.W. 378; Current v. Current, 244 Mo. 437; Winn v. Grier, 217 Mo. 451. (g) Medical testimony is regarded as opinion evidence, and speculative, and where there is positive testimony as to condition of body and mind, particularly where it contradicts such medical testimony, such medical testimony is of little or no weight. Rankin v. Rankin, 61 Mo. 295; McFadin v. Catron, 138 Mo. 197. (3) The influence exercised upon testator sufficient to invalidate his will must be of such a nature and character as amounts to overpersuasion, coercion or force, destroying the free agency or will power, as contradistinguished from merely the influence of affection or attachment, or the desire to gratify the wishes of one beloved, respected and trusted by testator. Jackson v. Hardin, 83 Mo. 175; Bushman v. Barlow, 292 S.W. 1050; Van Raalte v. Graff, 253 S.W. 223. (a) The "influence of affection or attachment, or the desire to gratify the wishes of one beloved, respected and trusted by testator" applies to strangers as well as to blood kin. Campbell v. Carlisle, 162 Mo. 646; Norton v. Paxton, 110 Mo. 466. (b) The influence must be operative, i. e., it must cause the testator to do something which he would not otherwise do. To be effective it must be sufficient to destroy the free agency of the testator at the time of making the will. The influence must be used to procure the legacy or bequest. Brinkman v. Rueggesick, 71 Mo. 553; Appleby v. Brock, 76 Mo. 314; Harvey v. Sullens, 46 Mo. 147; Teckenbrock v. McLaughlin, 209 Mo. 533; Tibbe v. Kamp, 154 Mo. 545; Saettle v. Perle, 281 S.W. 432. (c) The burden of proving undue influence is primarily on the one who alleges its existence. But, where a confidential relation exists between the legatee and testator, such as attorney and client, priest and communicant, etc., undue influence is presumed and the burden shifts to the legatee, or proponent of the will, to negative the presumption. Sanford v. Holland, 276 Mo. 457. (d) This presumption is one of fact and may be rebutted. Harvey v. Sullens, 46 Mo. 147. And when rebutted passes out of the case. Bushman v. Barlow, 292 S.W. 1053. (e) The presumption merely fixes the burden of proof and calls upon the proponent of the will to furnish evidence in addition to testimony of the execution of the will in accordance with the legal requirements, necessary to establish, prima-facie, the existence of a valid will. Jackson v. Hardin, 83 Mo. 175; Harvey v. Sullens, 46 Mo. 147 (f) Proof that testator was a man of "great tenacity of purpose," that he was self-assertive, and lack of evidence that he "had lost either the ambition to exercise dominion over his property, or interest in its management" negative the presumption of undue influence. Jackson v. Hardin, 83 Mo. 175. Likewise, a showing that the testator "was of very decisive character and made up his mind on his own investigation, and when he made up his mind he was determined." Van Raalte v. Graff, 253 S.W. 221. (g) The facts do not create the presumption of undue influence. In order to warrant that presumption the person who is charged with the exercise of the undue influence, or some member of his family, must be the beneficiary to substantially all the property of the testator, to the practical exclusion of the natural objects of testator's bounty. Tibbe v. Kamp, 154 Mo. 545. (4) Fraud contemplates deception and a reliance upon the truth of false representations. Testator must be deceived and must act or rely upon the false statements or representations. Van Raalte v. Graff, 253 S.W. 223. (5) A will contest is an action at law pure and simple. The province of the jury and court is the same as in an ordinary law suit. Substantial evidence carries the case to the jury; lack of it calls for the intervention of the court. Sehr v. Lindemann, 153 Mo. 289; Turner v. Anderson, 236 Mo. 523, 260 Mo. 30; Spencer v. Spencer, 221 S.W. 58; Winn v. Grier, 217 Mo. 420. There was no substantial evidence to warrant the submission to the jury of the issue of testamentary capacity, fraud or undue influence. (6) The proponents having made formal proof of the execution of the will and of the sanity of the testator at the time of its execution, and there being no substantial counter-vailing evidence, the jury should have been directed to find the issue of testamentary capacity in their favor. Spurr v. Spurr, 226 S.W. 39; Sanford v. Holland, 276 Mo. 468. (7) It is proper, where the evidence warrants, to instruct the jury that a will was formally executed. Everly v. Everly, 297 Mo. 210. (8) Instructions should not be broader than the pleadings or the evidence. They must come within the purview of both. (9) Where the trial court refuses to sustain an objection to improper argument, the appellate court must reverse his action. Stroud v. Doe Run Co., 272 S.W. 1080; Jackman v. Railroad, 206 S.W. 244. Failure to request that opposing counsel be rebuked for improper argument does not preclude review of the error. Myer v. Wells, 277 S.W. 585.

Taylor R. Young and Abbott, Fauntleroy, Cullen & Edwards for respondent.

(1) The evidence was ample to submit the case to the jury on the issue of fraud and deceit in the procurement of the will. Spur v. Spur, 285 Mo. 163; Wigginton v Rule, 275 Mo. 414; Coldwell v. Coldwell (Mo. Sup.), 228 S.W. 102; Thomas v. Thomas (Court en Banc), 186 S.W. 993; 2 Alexander's Commentaries, Law of Wills, p. 880, sec....