Raalte v. Graff

• Citation: 253 S.W. 220,299 Mo. 513
• Parties: ELIE VAN RAALTE et al., Appellants, v. ROSA GRAFF et al
• Decision Date: 02 July 1923
• Court: United States State Supreme Court of Missouri

253 S.W. 220

299 Mo. 513

ELIE VAN RAALTE et al., Appellants, v. ROSA GRAFF et al

Supreme Court of Missouri

July 2, 1923

Appeal from St. Louis City Circuit Court. -- Hon. Charles W Rutledge, Judge.

Affirmed.

Kinealy & Kinealy and Conway Elder for appellants.

(1) Where the chief beneficiary of a will is charged with undue influence her statements are competent evidence. Coldwell v. Coldwell, 228 S.W. 95. (2) On an issue of fraud a wide latitude is allowed in the introduction of evidence. 2 Alexander on Wills, p. 910, sec. 603; 1 Schouler on Wills Extrs. Admr., p. 289, sec. 240; Hughes v. Bader, 183 Mo. 630; Derby v. Donahoe, 208 Mo. 684; Sawyer v. Walker, 204 Mo. 133; Wagner v. Binder, 187 S.W. 1128; Palmer v. Huckstep, 197 Mo.App. 512. (3) Undue influence need not be exerted at the time of the execution of a will. It is sufficient if exerted before, and is then operating. Taylor v. Wilburn, 20 Mo. 306; Mowry v. Norman, 204 Mo. 173; Coldwell v Coldwell, 228 S.W. 95. (4) In a will contest it is proper for the jury to consider the reasonableness of the provisions of the alleged will. 28 Am. & Eng. Ency. Law (2d Ed.) 106; Mowry v. Norman, 223 Mo. 463; Meier v Buchter, 197 Mo. 68; Dunkeson v. Williams, 242 S.W. 658. (5) In will contests on the ground of fraud and undue influence the declarations of the testator are always competent to show his mental conditions, his exposure to constraint or fraud and the circumstances of the testamentary act. 1 Schouler on Wills, E. & A., p. 294, sec. 243; 2 Alexander on Wills, p. 923, sec. 611. (6) And because of necessity and the issues involved, such statements, standing alone, may be evidence of the facts contained in them. Dausman v. Rankin, 189 Mo. 677. (7) Such statements are competent evidence of the facts when considered in connection with other evidence. Canty v. Halpin, 242 S.W. 94; Teckenbrock v. McLaughlin, 209 Mo. 533. (8) Such declarations are always evidence of the facts when part of the res gestae. Gibson v. Gibson, 24 Mo. 227; Teckenbrock v. McLaughlin, 209 Mo. 533. (9) All statements of Jacob Lampert from the latter part of December, 1920, to the signing of the will on January 24, 1921, were part of the res gestae. State v. McKenzie, 228 Mo. 385; Stevens v. Walpole, 76 Mo.App. 13; Roberts v. Trawick, 17 Ala. 55. (10) In fraud cases great latitude is allowed in determining what is part of the res gestae. Weinstein v. Reid, 25 Mo.App. 41. (11) In considering a demurrer to the evidence on any issue, the party on whom is the burden is to be given the benefit of every inference which a fair-minded person might draw from the evidence. Burton v. Holman, 231 S.W. 630; Peak v. Taubman, 257 Mo. 390; Parker Washington Co. v. Dennison, 249 Mo. 449; Twohey v. Fruin, 96 Mo. 104; Donohue v. St. L. I. M. & S. Ry. Co., 91 Mo. 357. (12) The evidence in this case was ample to make out a case of fraud on the part of Rosa Graff. Spurr v. Spurr, 285 Mo. 163. (13) Fraud is rarely susceptible of direct, positive proof, but is usually an inference from facts and circumstances. Howard v. Zweigart, 197 S.W. 46; St. Francis Mill Co. v. Sugg, 206 Mo. 148; State ex inf. v. Standard Oil Co., 194 Mo. 155; Massey v. Young, 73 Mo. 260; Hopkins v. Sievert, 58 Mo. 201. (14) Where a confidential relation exists between a beneficiary and the testator, the law presumes undue influence and the burden is upon the beneficiary to rebut the inference. Burton v. Holman, 231 S.W. 629; Sittig v. Kersting, 223 S.W. 742; Cornet v. Cornet, 248 Mo. 184; Kettering v. Norman, 204 Mo. 173; Dausman v. Rankin, 189 Mo. 677. (15) Fiduciary relations are not confined to persons between whom there are business or financial transactions, but they may exist between any individuals. 12 C. J. 421, Confidential Rels.; 12 R. C. L. 234, Fraud and Deceit; Harvey v. Sullens, 46 Mo. 147; Cornet v. Cornet, 248 Mo. 184; Smith v. Williams, 221 S.W. 360; Rayl v. Golfinopulos, 233 S.W. 1069. (16) In a will contest it is proper to instruct as to the descent and distribution of the property in case there were no will. King v. Gilson, 191 Mo. 307. (17) In arguing a case to the jury counsel has the right to put his own construction upon the evidence and draw his own inferences therefrom. 38 Cyc. 1485, Trial; Atkinson v. United Rys. Co., 228 S.W. 483; Lamport v. Aetna L. I. Co., 199 S.W. 1020.

Jamison & Thomas, John A. Blevins and Karl M. Vetsburg for respondents.

(1) There is no substantial evidence in the record of undue influence or fraud upon Jacob Lampert in the making of the will in question, and the lower court should have, at the close of the whole case, given to the jury the defendants' peremptory instruction in the nature of a demurrer to the evidence, to return a verdict for defendants. Huffnagle v. Pauley, 219 S.W. 373; Teckenbrock v. McLaughlin, 209 Mo. 533; Current v. Current, 244 Mo. 429, 436; Winn v. Grier, 217 Mo. 420, 460; Hahn v. Hammerstein, 272 Mo. 248, 264; McFadin v. Catron, 138 Mo. 197, 219; Ginter v. Ginter, 22 L. R. A. (N. S.) 1024; Tibbe v. Kamp, 154 Mo 545; Turner v. Anderson, 236 Mo. 523, 260 Mo. 1; Hayes v. Hayes, 242 Mo. 155; Jackson v. Hardin, 83 Mo. 175, 186; Hamon v. Hamon, 180 Mo. 685; Conner v. Skaggs, 213 Mo. 334, 340; Fulton v. Freeland, 219 Mo. 494; Defoe v. Defoe, 144 Mo. 458. (2) The defendants were entitled, under the evidence, to a peremptory instruction at the close of the whole case, and the errors assigned by appellants need not be considered by this court. Phillips v. Pulitzer Pub. Co., 238 S.W. 127. (3) The evidence offered by appellants on the trial of this case and refused by the court was not of a substantial character and could not, if admitted, in view of all the evidence, have altered or affected the verdict rendered or the judgment of the court. Fulton v. Freeland, 219 Mo. 494, 520; Seibert v. Hatcher, 205 Mo. 83. (4) Declarations or statements made by the testator, but not at the time of the making of the will, are admissible in evidence only for the purpose of showing the state of his affections or feelings toward his relatives, and they are not to be taken as true for the purpose of establishing undue influence or fraud and defeating the will. Teckenbrock v. McLaughlin, 209 Mo. 533; Hobson v. Moorman, 115 Tenn. 73; Schierbaum v. Schemme, 157 Mo. 1; Borland on Wills, p. 276; Seibert v. Hatcher, 205 Mo. 83; Lindsey v. Stephens, 229 Mo. 600, 617; Hayes v. Hayes, 242 Mo. 170; Gibson v. Gibson, 24 Mo. 227; Doherty v. Gilmore, 136 Mo. 414; Gordon v. Burris, 141 Mo. 602; Crowson v. Crowson, 172 Mo. 703; Corbett v. Railway Company, 26 Mo.App. 625; R. S. 1919, sec. 508; Comstock v. Hadlyme, 8 Conn. 263; Robinson v. Hutchinson, 26 Vt. 38; Kennedy v. Upshaw, 64 Tex. 411, 418; Boylan v. Meeker, 28 N. J. L. 274, 290; 1 Alexander on Wills, p. 61, sec. 53; 2 Alexander on Wills, pp. 917-918, sec. 608; Note to In re Colbert Est., 107 A. S. R. 465; Note to Roberts v. Trawick, 52 Am. Dec. 167. The alleged statements of Jacob Lampert not made at the time of the execution of the will must be entirely eliminated from the record in considering the question of undue influence or fraud. (5) The evidence of the contents of former wills made by Mr. Lampert establishes a fixed purpose in his mind with regard to the disposition of his property and destroys the charges of undue influence and fraud in the making of his will. Lindsey v. Stephens, 229 Mo. 617; Yant v. Charles, 219 S.W. 572; Current v. Current, 244 Mo. 435; Crowson v. Crowson, 172 Mo. 702. (6) Statements of Mr. Lampert at the time of the execution of the will in question were part of the res gestae and as such are admissible in evidence, not only as proof of the state of his affections for his relatives, but as proof of the facts stated by him at said time. Hayes v. Hayes, 242 Mo. 155; Teckenbrock v. McLaughlin, 209 Mo. 533; Ginter v. Ginter, 22 L. R. A. (N. S.) 1024; McFadin v. Catron, 138 Mo. 197, 210; Nelson v. McCallahan, 55 Cal. 308. (7) Undue influence, to invalidate a will, must be of such a character as to destroy the testator's free agency and to substitute for his will the will of another person. The influence which arises from affection and kindness is not undue influence. Seibert v. Hatcher, 205 Mo. 83; Fulton v. Freeland, 219 Mo. 494; Sehr v. Lindemann, 153 Mo. 276; Kischman v. Scott, 166 Mo. 214; Land v. Adams, 229 S.W. 158; Norton v. Paxton, 110 Mo. 456; Gibbony v. Foster, 230 Mo. 106; Jackson v. Hardin, 83 Mo. 185; McFadin v. Catron, 138 Mo. 197, 219; Campbell v. Carlisle, 162 Mo. 634, 646. (8) Statements or declarations made by Rosa Graff in the absence of other legatees and in the absence of an allegation or proof of conspiracy or privity of design are not admissible in evidence. Schierbaum v. Schemme, 157 Mo. 1; Teckenbrock v. McLaughlin, 209 Mo. 533; Seibert v. Hatcher, 205 Mo. 101; Defoe v. Defoe, 144 Mo. 458; Garland v. Smith, 127 Mo. 567; Wood v. Carpenter, 166 Mo. 465; King v. Gilson, 191 Mo. 307; 38 L. R. A. (N. S.) 733, note. (9) Evidence as to hard feelings against any one of the proponents of the will is inadmissible. Andrew v. Linebaugh, 260 Mo. 623, 648. (10) The evidence did not establish a confidential or fiduciary relation between Rosa Graff and Jacob Lampert. Kischman v. Scott, 166 Mo. 214; Land v. Adams, 229 S.W. 158, 163; In re Brand, 173 N.Y.S. 169; Campbell v. Carlisle, 162 Mo. 634; Smith v. Williams, 221 S.W. 360; 2 Words and Phrases, p. 1423; 2 Pomeroy Equity (3 Ed.) sec. 956; Studybaker v. Cofield, 159 Mo. 596; Lee v. Lee, 258 Mo. 599. (11) Rosa was the youngest of the Lampert family and was the favorite of her mother and Jake from childhood, and Jake's action in making her the principal beneficiary under his will was the result of his love and affection for her and not the result of fraud or undue influence on her part. Kerr v....