Patton v. Shelton, 29658.

CourtUnited States State Supreme Court of Missouri
Citation40 S.W.2d 706
Docket NumberNo. 29658.,29658.
PartiesD.W. PATTON ET AL. v. OLIVER M. SHELTON ET AL., Appellants.
Decision Date03 July 1931

Appeal from Warren Circuit Court. Hon. Emil Roehrig, Judge.

AFFIRMED.

S.S. Nowlin and Reed & Beard for appellants.

(1) Every witness in the case says that testatrix was of sound mind; hence there is not a word of testimony to justify the verdict and judgment on the question of mental incapacity. (2) There is not a word of testimony, or a single fact or circumstance, tending to prove that contestee, or anyone for him, used any influence, much less undue influence, to procure the will. In the absence of such proof the will should be upheld. Teckenbrock v. McLaughlin, 209 Mo. 533; Bushman v. Barlow, 292 S.W. 1039; Meyers v. Drake, 24 S.W. (2d) 116; Denny v. Hicks, 2 S.W. (2d) 139; Knadler v. Stelzer, 19 S.W. (2d) 1054; Spurr v. Spurr, 226 S.W. 35; Turner v. Butler, 253 Mo. 202. (3) At most the facts in the case could only arouse a suspicion that undue influence was used, and suspicion is no reason for striking down a will. Lindsay v. Shaner, 291 Mo. 297; Turner v. Anderson, 236 Mo. 541. (4) As to the question of undue influence, the law casts the burden on contestants, and the court erred in giving plaintiffs' second instruction which placed the burden on contestee. Spurr v. Spurr, supra; Nook v. Zuck, 289 Mo. 24; Jones v. Jones (Mo. App.), 260 S.W. 793. (5) The court erred in refusing to give contestee's peremptory instruction.

James P. Boyd, E.L. Alford and A.H. Drunert for respondents.

(1) The issue of mental incompetency was not submitted to the jury by the instruction, hence appellants point one passes from the picture. (2) There is abundance of evidence in the record to submit to the jury the issue of undue influence. Undue influence need not be shown by direct proof, but may be established by proof of facts from which it may be rationally inferred. Among these facts are the inclination to use undue influence, the incentive and the opportunity. All these were markedly present in this situation. Dingman v. Romine, 141 Mo. 474; Gott v. Dennie, 246 S.W. 222; Coldwell v. Coldwell, 228 S.W. 102; Bradford v. Blossom, 190 Mo. 143; Myers v. Hauger, 98 Mo. 433; Jones v. Thomas, 218 Mo. 536; Cook v. Higgins, 290 Mo. 426; Roberts v. Bartlett, 190 Mo. 700. (3) Where a confidential or fiduciary relation is shown to exist, a presumption of undue influence at once arises and the burden is cast upon the defendant or beneficiary under the will to overcome this presumption. Hershey v. Horton, 15 S.W. (2d) 808; Bradford v. Blossom, 190 Mo. 143; Gay v. Gillilan, 92 Mo. 263; Maddox v. Maddox, 114 Mo. 35; Cook v. Higgins, 290 Mo. 427; Mowry v. Norman, 204 Mo. 189; Jones v. Thomas, 218 Mo. 536. It is not true that before the relation between a testator and a beneficiary can be held to be a fiduciary relation, undue influence must be first proven. That would destroy the presumption altogether. Where it may be fairly concluded from the evidence that the beneficiary under a will and in his relation to the testator was acting not so much out of affection and filial duty as from self-interest, the presumption of undue influence arises. Hershey v. Horton, 15 S.W. (2d) 801, 808; Sinnett v. Sinnett, 201 S.W. 888; Cook v. Higgins, 290 Mo. 426; Jones v. Thompson, 218 Mo. 536. (4) Where there is evidence of undue influence in a case, and where an unjust discrimination in a will has been made against the natural objects of the bounty of the testator, such unnatural discrimination in itself becomes evidence of such undue influence, and the burden is shifted from the contestant to the proponent the same as where a confidential relation is shown. Gott v. Dennie, 246 S.W. 224; Roberts v. Bartlett, 190 Mo. 680; Jones v. Thomas, 218 Mo. 536. (5) Plaintiff's instruction 2 under the evidence was entirely proper. Hershey v. Horton, 15 S.W. (2d) 808; Bradford v. Blossom, 190 Mo. 143; Gay v. Gillilan, 92 Mo. 263; Maddox v. Maddox, 114 Mo. 35; Cook v. Higgins, 290 Mo. 427; Mowry v. Norman, 204 Mo. 189. (6) The court properly refused to give the defendant proponents' peremptory instruction. Soureal v. Wisner, 13 S.W. (2d) 551; Canty v. Halpin, 294 Mo. 103.

FITZSIMMONS, C.

This is an action under the statute (Sec. 537, R.S. 1929) to contest the validity of the will of Mrs. Nannie Shelton, deceased. For many years Mrs. Shelton lived and in February, 1927, died in Jonesburg, Montgomery County. The action was begun there, but on application of plaintiffs the venue was changed to Warren County, where a trial was had. The jury by its verdict found that the purported will was not the last will and testament of Mrs. Shelton. Judgment was rendered accordingly. The motion for a new trial filed by Oliver M. Shelton, the sole beneficiary under the purported will, and its named executor, was overruled and he appealed to this court. The estimated value of the estate ranges from ten to fifteen thousand dollars. The plaintiffs and the minor defendant, Susie Mae Ellis, are Mrs. Nannie Shelton's sole heirs, they being descendants of Mrs. Shelton's brother.

Plaintiff Edward Patton is a nephew of Mrs. Nannie Shelton. He lives in Paris, Missouri, seventy-five miles by railroad from Jonesburg, Mrs. Nannie Shelton's home. The other plaintiffs and the minor defendant. Susie Mae Ellis, are grandnephews and grandnieces of Mrs. Nannie Shelton. Some live in Garden City, Kansas, and all of them at a distance from Jonesburg.

Defendant Oliver Shelton was a half-brother of Mrs. Nannie Shelton's husband, Frank Shelton. Oliver Shelton lived in Arkansas, until about May, 1926, when he took up his abode with the Sheltons in Jonesburg. He returned to Arkansas several times, but he made a fairly permanent home in Jonesburg, especially after the death of his half-brother, Frank Shelton, who passed away July 8, 1926. It would seem that whatever property Mrs. Nannie Shelton had to dispose of by will she inherited or received from Frank Shelton, her husband.

Mrs. Shelton executed the will in suit on August 7, 1926, and as before said, she died in February, 1927. Mrs. Shelton, by the will, directed the payment of all her just debts, and left the remainder of her property "to my brother-in-law (the half-brother of my deceased husband) Oliver M. Shelton." She appointed Oliver Shelton executor without bond.

The petition charges that Mrs. Nannie Shelton, who was about seventy-six years old at the time that she executed the will in suit, had been "feeble in health for many years, and in consequence of which she was weak and feeble both in body and mind;" that defendant Oliver Shelton took up his residence in the Shelton home in Jonesburg some months before the execution of the will and while Frank Shelton, the husband of Nannie Shelton and half-brother of Oliver Shelton, was yet alive. The petition further recites:

"That after the death of the husband of the said Nannie Shelton, deceased, the said defendant Oliver M. Shelton remained in the home of the said Nannie Shelton, who was an invalid, and who had for many years been an invalid, and was her constant companion and nurse, and that by reason of his living within the home and nursing the said Nannie Shelton while she was an invalid, the said Oliver M. Shelton had gained full and complete confidence of the said Nannie Shelton, and complete influence over her."

The petition further charges that at the time of the execution of the will in suit. Nannie Shelton, deceased, was completely under the influence, domination and control of defendant Oliver M. Shelton; that she was not of a determined mind and that her mind and memory had become and was impaired; that she had become of unsound mind within the meaning of the law, incapable of understanding, realizing, or appreciating what disposition she had or was making of her property and affairs; "that defendant Oliver M. Shelton, knowing the exact condition of the said Nannie Shelton, deceased, and of her mind at said time, and knowing that, at the time, by reason of his nursing and caring for her and living within her home, and the confidential relation existing between himself and the said Nannie Shelton, deceased, and knowing that the said Nannie Shelton was weak in body and in mind, and was far advanced in years, by his request, entreaties and influence, over the mind of the said Nannie Shelton, prevailed upon her to make said pretended will." The petition further charged "that the defendant Oliver M. Shelton well knowing the confidential relation existing between himself and the said Nannie Shelton and knowing his influence over the mind of the said Nannie Shelton and in violation of said confidential relation existing between the said Oliver M. Shelton and the said Nannie Shelton, did by words, acts and entreaties towards her, the said Nannie Shelton, unduly influence and prejudice the mind of the said Nannie Shelton against these plaintiffs and the said defendant Susie Mae Ellis," and thereby brought about the execution of the will.

Defendant Oliver M. Shelton, by his answer, set up that the will in suit was the last will and testament of Nannie Shelton. He put in issue the allegations of the petition that the purported will was not her will for want of testamentary capacity and by reason of his undue influence. The guardian of the minor defendant, Susie Mae Ellis, filed an answer adopting the allegations of the petition.

At the trial, defendant Oliver Shelton, proponent of the will, and as such having the opening and closing to the jury (Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46; Benoist v. Murrin, 58 Mo. l.c. 321) first made a prima-facie proof of the execution of the will and of the competency of Mrs. Shelton at the time. Thereby he shifted to the contestants the burden of evidence which had been his in the first place. [Campbell v. Carlisle, 162 Mo. 644, 63 S.W. 701.] The contestants then introduced their evidence, and at...

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