Munday v. Knox

• Decision Date: 06 October 1928
• Docket Number: No. 27273.,27273.
• Parties: JOHN TOBIAS MUNDAY and REUBEN P. MUNDAY v. THOMAS R. KNOX, ELIZABETH KNOX and THOMAS R. KNOX, Executor of Estate of TOBIAS HENSON, Appellants.
• Court: Missouri Supreme Court

9 S.W.2d 960

JOHN TOBIAS MUNDAY and REUBEN P. MUNDAY v. THOMAS R. KNOX, ELIZABETH KNOX and THOMAS R. KNOX, Executor of Estate of TOBIAS HENSON, Appellants.

No. 27273.

Supreme Court of Missouri. Division Two.

October 6, 1928.

Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.

AFFIRMED.

Mann & Mann, Robert Stemmons and William B. Skinner for appellants.

(1) Where proponents make formal proof of the execution of a will and the sanity of the testator at the time, and there is no substantial countervailing evidence offered on the issue of testamentary capacity, the jury should be directed to find that issue in proponents' favor. Spurr v. Spurr, 226 S.W. 39; Sanford v. Holland, 276 Mo. 457. (2) The declarations and statements of a testator made before and at the time of the execution of his will as to his intended disposition of his property are admissible to sustain such will if its provisions are in conformity to and in harmony with such expressed intentions, on the issue of undue influence. Page on Wills, pars. 422, 423, p. 498; Alexander's Comm. on Wills, par. 609, p. 908; Jones v. Thomas, 218 Mo. 508; 40 Cyc. 1157, 1158. (3) "Undue influence to be effective in setting aside and breaking a will should be of sufficient potency to destroy the free agency of the testator at the time of making a will. The influence of natural affection may flow at all times; its waters are under no ban known to the law. The undue influence that will break a will must be present in active exercise, and rise to the mark of such over-persuasion, coercion, force, fraud, or deception, as breaks the will power of the testator and puts in its stead the will of another." Turner v. Anderson, 236 Mo. 523; Teckenbrock v. McLaughlin, 209 Mo. 521. (4) In an action to set aside and render void a will on the alleged ground of undue influence, the burden of proof is on the party alleging it, and it devolves upon such party or contestant to establish the charge by a preponderance of the evidence. Page on Wills, par. 405; Alexander's Comm. on Wills, par. 617; Gay v. Gillilan, 92 Mo. 250; Canty v. Halpin, 294 Mo. 118; Sanford v. Holland, 276 Mo. 469; Gibbony v. Foster, 230 Mo. 136. (5) An individual is said to stand in a fiduciary and confidential relation to another where he has rights and powers which he is bound to exercise for that other person in the conduct of a business wherein the principal is entirely dependent upon the agent in the management thereof and must look to such agent for advice, counsel, and direction in the matter of conducting and managing the same. Cornett v. Cornett, 248 Mo. 235; Sanford v. Holland, 276 Mo. 470; Spurr v. Spurr, 226 S.W. 39; Canty v. Halpin, 294 Mo. 136; Winn v. Grier, 217 Mo. 460. Unless the facts constituting a fiduciary relation between individuals are admitted or appear from the testimony of the party to be charged therewith, it is a question for the jury. Sittig v. Kersting, 284 Mo. 167; Page on Wills, par. 406. (6) A confidential or fiduciary relationship alone does not raise a presumption of undue influence in the absence of evidence showing that the will in question was drawn by such beneficiary or was suggested or influenced by him in the making thereof. Page on Wills, pars. 414-417; Alexander's Comm. on Wills, par. 596; Carl v. Gabel, 120 Mo. 283; Mackall v. Mackall, 135 U.S. 167; Huffman v. Huffman, 217 Mo. 182; Studebaker v. Cofield, 159 Mo. 596; Turner v. Butler, 253 Mo. 202. (7) The presumption of undue influence which is said to arise where it appears the beneficiary in the will sustained fiduciary relations with the testator, is only a presumption of fact and not of law, and only sustains the burden of evidence until evidence to the contrary appears, and it then becomes functus officio and drops out of sight and it is error to submit such presumption to the jury. Page on Wills, pars. 403, 414; Morton v. Heidorn, 135 Mo. 816; McKenna v. Lynch, 289 Mo. 21; State ex rel. v. Ellison, 268 Mo. 257; Canty v. Halpin, 294 Mo. 137; Stack v. General Banking Co., 283 Mo. 421. (8) Instructions which are argumentative, which single out particular facts, repeat them and give undue prominence to such narrated and repeated facts, in discrimination of all other facts in the case, are comments upon the evidence and are erroneous. McFadden v. Catron, 120 Mo. 274; Andrews v. Linebaugh, 260 Mo. 662.

R.M. Sheppard, Frank Williams and Neale & Newman for respondents.

(1) In a suit brought to contest a will, the proponents' evidence must be put out of consideration except as the same aids contestants' case, and contestants' evidence accepted as entirely true and given the benefit of every legitimate inference to be drawn therefrom. Van Raalte v. Graff, 253 S.W. 220; Fowler v. Fowler, 2 S.W. (2d) 707; Ard v. Larkin, 278 S.W. 1067; Roberts v. Bartlett, 190 Mo. 700. (2) The rule of confidential relation embraces both technical and fiduciary relations, and those relations that exist whenever one trusts in, and relies upon, another. Tobias Henson, and his brother John Henson, had, for years, relied upon, and trusted their business relations with Tom and Lizzie Knox. After the death of John Henson, Tom Knox, a beneficiary under the will, had absolute charge and control of the affairs of Tobias Henson, and on October 6, 1919, entered into a written contract of partnership with Tobias Henson, whereby Tom Knox was given the absolute charge and control of the business affairs of Tobias Henson, for their joint lives and under this agreement Tom Knox continued in charge and control of all the business of the deceased from that date until his death, and took and claimed the partnership property by right of survivorship. This established a confidential relation. Studebaker v. Coffield, 159 Mo. 596; 27 Am. & Eng. Ency. Law, 460; Hall v. Coppenberger, 97 Mo. 511. (3) Where there is gross inequality in a will, it becomes the duty of a court to scan the record with care for all facts and circumstances which might throw any light on the issues. Ard v. Larkin, 278 S.W. 1067; Gott v. Dennis, 296 Mo. 66. (4) Where a confidential relation is shown to exist, the burden is cast upon the person claiming the benefit to show that the benefit flowed from the free, unbiased and independent will and uninfluenced volition of the benefactor. Garvin, Admr. v. Williams, 44 Mo. 465; Harvey v. Sullens, 46 Mo. 148; Cadwallader v. West, 48 Mo. 502; Dingman v. Romine, 141 Mo. 474; Allore v. Jewell, 94 U.S. 506; Griffith v. Godey, 113 U.S. 89; Ryan v. Ryan, 174 Mo. 285; Dansman v. Rankin, 189 Mo. 703; Roberts v. Bartlett, 190 Mo. 699; Meir v. Buchter, 197 Mo. 86; Mowry v. Norman, 204 Mo. 234; Byrne v. Byrne, 250 Mo. 646; Canty v. Halpin, 294 Mo. 103; Gott v. Dennis, 296 Mo. 66; Turner v. Anderson, 260 Mo. 31; Rayl v. Golfinopulos, 233 S.W. 1072; Burton v. Holman, 288 Mo. 79. (5) Fraud is never presumed. But undue influence, like every other fraud, can rarely be proved by positive and direct evidence. It may be inferred from facts and circumstances. Carl v. Gabel, 120 Mo. 297; Martin v. Baker, 135 Mo. 501. In an inquiry as to whether the execution of a deed or will was the free and voluntary act of the grantor, or was the result of improper influence of the defendant, the following things may be taken into consideration: (a) The character of the transaction, which embraces the unnatural disposition of property, and the disregard of those who have a legal claim upon the bounty of the donor. Roberts v. Bartlett, 190 Mo. 699. (b) The physical and mental weakness of the grantor and the relationship of the parties to each other. Ryan v. Ryan, 174 Mo. 285; Martin v. Baker, 135 Mo. 503; Dingman v. Romine, 140 Mo. 474; Dausman v. Rankin, 189 Mo. 703. (c) The character of the instrument, expressions in the will showing confidence, the fact that the will did not require the executor to give bond, are all competent and material. Meier v. Buchter, 197 Mo. 86; Schouler on Wills (3 Ed.) sec. 77; 1 Underhill on Wills, sec. 105; Page on Wills, sec. 385; Aylward v. Briggs, 145 Mo. 604; 1 Redfield on Wills (4 Ed.) 516; Gay v. Gilliland, 92 Mo. 264; McFadden v. Catron, 120 Mo. 271; 28 Am. & Eng. Ency. Law (2 Ed.) 106, 115, 116; Campbell v. Carlisle, 162 Mo. 634; Catholic University v. O'Bryan, 181 Mo. 68; Hughes v. Rader, 183 Mo. 710; Dausman v. Rankin, 189 Mo. 707; Bradford v. Blossom, 190 Mo. 139; King v. Gilson, 191 Mo. 327; Mowry v. Norman, 204 Mo. 190; Byrne v. Byrne, 250 Mo. 646. (6) Where the evidence shows that confidential relations exist between a testator and a substantial beneficiary at the time of making the will, a presumption of law arises that undue influence was exerted and that the will is the product of such influence. Ehrlich v. Mittelberg, 299 Mo. 284; Garvin v. Williams, 44 Mo. 465; Burton v. Holman, 288 Mo. 70; Canty v. Halpin, 294 Mo. 118; Carl v. Gabel, 120 Mo. 283; Mowry v. Norman, 204 Mo. 173; Dausman v. Rankin, 189 Mo. 677; Maddox v. Maddox, 114 Mo. 35; Wendling v. Bowden, 252 Mo. 647; Roberts v. Bartlett, 190 Mo. 680; Byrne v. Fulkerson, 254 Mo. 97; Sittig v. Kersting, 284 Mo. 143; Cornet v. Cornet, 248 Mo. 184. (7) The defendants cannot complain of the giving of plaintiff's instructions on undue influence because at defendant's request the court gave Instruction B which tells the jury that "a will in favor of persons standing in close confidential relations to the testator is presumed in law to have been made under undue influence exercised by such beneficiary." If the court erred in giving plaintiff's instructions to the same effect it was invited error and defendants cannot complain of it. Ard v. Larkin, 278 S.W. 1063; Vaughn v. May, 274 S.W. 969; 4 C.J. 709, sec. 2620.

HIGBEE, C.

This action to contest the will of Tobias Henson, deceased, was begun in the Circuit Court of Lawrence County on December 4, 1923. On February 11, 1924, the venue was changed to Division Two of the Circuit Court of Greene County. There was a...