Odom v. Langston

• Decision Date: 10 June 1941
• Docket Number: 37235
• Citation: 152 S.W.2d 124,347 Mo. 1201
• Parties: A. D. Odom et al., Appellants, v. Louise W. Langston et al
• Court: Missouri Supreme Court

152 S.W.2d 124

347 Mo. 1201

A. D. Odom et al., Appellants, v. Louise W. Langston et al

No. 37235

Supreme Court of Missouri

June 10, 1941

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Reversed and remanded.

J N. Burroughs, H. D. Green and Paul Barrett for appellants.

(1) In a will contest the proponents are required to prove every affirmative act that is essential to a valid will, even though the contestants offer no evidence at all. And where there is no evidence that the purported will was read to the testatrix or that it was every explained to her or that the memorandum was read by or explained to her, the proponents fail to sustain the burden of proof required and the court erred in directing a verdict declaring said instrument to be the last will and testament of testatrix. Bradford v Blossum, 207 Mo. 177; Idle v. Moody, 127 S.W.2d 660; Goodfellow v. Shannon, 94 S.W. 979; Rock v Keller, 278 S.W. 759; Chambers v. Chambers, 429 S.W. 415; Lindsay v. Shaner, 236 S.W. 319; Royal v. Goldfinopulus, 233 S.W. 1069; Cowan v Shaver, 197 Mo. 208; Smith v. Williams, 221 S.W. 360; 110 A. L. R. 690; 68 C. J., 668. (2) A confidential or fiduciary relationship exists where two persons stand in such relation that while it continues confidence is necessarily reposed by one and the influence which naturally grows out of that confidence is possessed by the other. Selle v. Wrigley, 116 S.W.2d 217; Patton v. Shelton, 40 S.W.2d 706; Clark v. Commerce Trust Co., 62 S.W.2d 874; Rardon v. Davis, 52 S.W.2d 193. (3) And a power of attorney given by one person to another to sign checks creates a fiduciary relationship. Clark v. Commerce Trust Co., 62 S.W.2d 874. (4) A confidential relationship exists between two persons whether their relations be such as are technically fiduciary or merely informal, whenever one trusts in and relies upon the other, the question in such case being always whether trust is reposed. Selle v. Wrigley, 116 S.W.2d 217; Heflin v. Fullington, 37 S.W.2d 931; Wendling v. Bowden, 161 S.W. 774; Kleinlein v. Krauss, 209 S.W. 933; Cowan v. Shaver, 197 Mo. 203; Burton v. Holman, 230 S.W. 623; Cook v. Higgins, 235 S.W. 807. (5) And recitals in the will may be considered to establish confidential or fiduciary relationship. Munday v. Knox, 9 S.W.2d 960; Erliech v. Mittleberg, 252 S.W. 677; Sitteg v. Kersting, 223 S.W. 743. (6) Where the beneficiary stands in a fiduciary relation to testatrix and was active in some way which caused or assisted in causing execution of will, then in such event such facts are sufficient to cause the presumption of undue influence to arise and makes a question for the jury to pass on. Loehr v. Starke, 56 S.W.2d 772; Pulitzer v. Chapman, 85 S.W.2d 400. (7) And such presumption once established does not disappear on appearance of rebutting testimony but continues throughout the trial and raises an issue for the jury. (8) Fraud and undue influence may be established indirectly by facts and circumstances and the contestants have wide latitude in presenting evidence to show fraud and undue influence. Patton v. Shelton, 40 S.W.2d 714; Canty v. Halpin, 242 S.W. 94; Bushman v. Barlow, 292 S.W. 1039; Denny v. Hicks, 2 S.W.2d 139; Bradford v. Blossom, 190 Mo. 110; Roberts v. Bartlett, 190 Mo. 680; Mowry v. Norman, 204 Mo. 173; Kaechelen v. Barringer, 19 S.W.2d 1039; Coldwell v. Coldwell, 228 S.W. 95. (9) And every fact and circumstance no matter how little its probative force which throws light on the issue is admissible. 68 C. J. 782. (a) Evidence that husband of chief beneficiary was son of testatrix and during his lifetime was confidential and business adviser to his mother is a strong circumstance in establishing fraud and undue influence. Meir v. Butcher, 197 Mo. 70. (b) And where fraud and undue influence by others is established and acquiscence of the chief beneficiary in their acts is shown it is sufficient to vitiate the will in contest. Cowan v. Shaver, 197 Mo. 214. (c) Bequests obtained by a charitable association through undue influence of the executor who was also the scrivener of the will and who held a confidential relation to the testatrix cannot be held by it although there is no personal interference by its officers in bringing about the gift. Roberts v. Bartlett, 190 Mo. 680. (d) And where the executor and scrivener was "attorney" for the chief beneficiary and business adviser to the testatrix and was insolvent and made executor to serve without bond with power to sell the real estate of testatrix, held such facts make a case for the jury on the issues of fraud and undue influence. (e) And the absence of the chief beneficiary at the time of the execution of the will in contest is strong evidence of fraud and undue influence where it was shown that the chief beneficiary prior to the execution was active in assisting testatrix with her business affairs. Mowry v. Norman, 204 Mo. 173. (10) And in presenting case, evidence of other contracts, probate matters and trust agreements closely connected with the matter in issue may be shown to establish fraud and undue influence. Sitteg v. Kersting, 284 Mo. 143. (11) Fraud and undue influence sufficient to set aside a will may be exercised by aiders and abettors. Smith v. Williams, 221 S.W. 360; Moore v. McNulty, 164 Mo. 111; Burton v. Holman, 231 S.W. 630; Royal v. Goldfinopulus, 233 S.W. 1069; Cowan v. Shaver, 197 Mo. 214; McQualy v. Murdock, 239 S.W. 127; Gott v. Dennis, 246 S.W. 225. (12) Fraud and undue influence sufficient to set aside a will may be exercised by a third person even without the knowledge or consent of the beneficiary. Ranken v. Patton, 65 Mo. 378; Wing v. Havelik, 161 S.W. 732; Curtis v. Alexander, 257 S.W. 432; Caspari v. Church, 82 Mo. 649; Mueller v. St. Louis Hospt., 5 Mo.App. 390; Gott v. Dennis, 246 S.W. 218; In re Teckenbrock, 209 Mo. 542; 96 A. L. R. 613. (13) It is a well settled principle of law that statements or declarations made contemporaneously with or immediately preparatory to the particular litigated fact which tend to explain, illustrate or show the object or motive of the act are properly admissible in evidence as a part of a res gestae. Nannie v. Shell & Son, 138 S.W.2d 717; Edwards v. Ethel Gasoline Corp., 112 S.W.2d 555; Koonce v. Mo. Pac. Ry. Co., 18 S.W.2d 467; Coy v. Dean, 4 S.W.2d 835; 22 C. J., 445, 448, 458. (14) And this is true of correspondence with a third person. Brokerage Co. v. Humes, 193 Mo.App. 120; Ranken v. Patton, 65 Mo. 379. (15) Or by an agent while transacting business for his principal and as a part of the transaction which is the subject of the inquiry. Gillespi v. Holland, 31 S.W.2d 774; Beardsley v. Steinmesh, 38 Mo. 168; Stroghs v. McFarland, 194 S.W. 881; Sconce v. Jones, 121 S.W.2d 777; Schroeder v. Rawlings, 127 S.W.2d 678. (16) It is not necessary to render a statement or act admissible as part of the res gestae that it should have been made or done by one of the participants in the main transaction, but if it has the necessary connection with the main fact it may be admitted by whom it was made or done. State v. Kaiser, 124 Mo. 651; Crothers v. Gibson, 19 Mo. 365. (17) While prior disconnected declarations or facts must be excluded, a declaration of fact which although antecedent in point of time is preliminary or immediately preparatory to the main fact, may be received in evidence. State v. Thompson, 42 S.W. 949; Finnell v. Kellogg, 186 S.W. 1169; 22 C. J., 453. (18) Thus statements made in the course of negotiations leading up to the execution of a will or contract may be admissible as a part of the res gestae. 22 C. J., 453-454. (19) After admission of testimony without objection, petition will be deemed amended accordingly. Elmer v. Cox, 9 S.W.2d 681; Payton v. Ethridge, 262 S.W. 69; State ex rel. v. Gromer, 252 S.W. 705; Treece State Bank v. Wade, 283 S.W. 714. (20) Evidence received, though incompetent as hearsay or otherwise, if not seasonably objected to on proper grounds, constitutes evidence in the case. Covel v. Western Union Telegraph Co., 147 S.W. 555; Doyle v. Bridge Co., 31 S.W.2d 1010; Munton v. Storage Co., 22 S.W.2d 61; Murphy v. Water Co., 54 S.W.2d 69; Tralle v. Chevrolet Co., 92 S.W.2d 966. (21) In determining whether submissible case was made for contestants wherein proponents demurred at the close of the evidence, contestants' evidence together with all reasonable inferences that could be drawn therefrom is required to be accepted as true, and proponents' evidence, showing facts contrary to contestants' evidence and all unfavorable inferences must be rejected. Plason v. Lenz, 61 S.W.2d 727; Steger v. Meeham, 63 S.W.2d 109; Clark v. Bridge Co., 24 S.W.2d 143; Jones v. Frisco Railroad Co., 63 S.W.2d 94; Mosley v. Sum, 130 S.W.2d 465; Coldwell v. Coldwell, 228 S.W. 95; Turner v. Anderson, 168 S.W. 947; Fritz v. Railroad, 243 Mo. 77; Stauffer v. Railroad, 243 Mo. 316; Redman v. Railroad, 278 S.W. 96; Cech v. Mallinckrodt, 20 S.W.2d 511. (22) From the above and foregoing rules of law and the facts developed on the trial of this cause, appellants charge that the court erred in refusing to submit to the jury the issue of whether the purported will was the will of the deceased and was by her duly executed as her last will and testament. Rankin v. Patton, 65 Mo. 378; Bradford v. Blossom, 207 Mo. 177; Idle v. Moody, 127 S.W.2d 660; Fritz v. Railroad, 243 Mo. 77; Clark, Commerce Trust Co., 62 S.W.2d 874; Lindsay v. Shaner, 236 S.W. 319; 110 A. L. R., 690. (23) The facts of this case as appear from the evidence and the rules of law heretofore assigned entitled appellants to have the cause submitted to the jury on both issues of fraud and undue influence as charged in their petition. Pulitzer v. Chapman, 85 S.W.2d 400; Clark v. Commerce Trust Co., 62 S.W.2d...