O'Reilly v. O'Reilly

• Decision Date: 26 December 1941
• Docket Number: No. 6295.,6295.
• Citation: 157 S.W.2d 220
• Parties: O'REILLY v. O'REILLY et al.
• Court: Missouri Court of Appeals

157 S.W.2d 220

O'REILLY v. O'REILLY et al.

No. 6295.

Springfield Court of Appeals. Missouri.

December 26, 1941.

Appeal from Circuit Court, Scott County; J. C. McDowell, Judge.

"Not to be published in State Reports."

Action by Lee O'Reilly against Alice O'Reilly and another to set aside pretended will. From a judgment for the defendants, the plaintiff appeals.

Affirmed.

Geo. W. Kirk, of Sikeston, for appellant.

W. Clifton Banta, of Charleston, for respondents.

FULBRIGHT, Judge.

This cause of action originated in the Circuit Court of Mississippi County, the purpose of which is to set aside an alleged pretended will and have the same declared null and void. A change of venue was granted and the cause was sent to the Circuit Court of Scott County where it was tried on the 17th day of March, 1941. At the close of the evidence defendants offered an instruction in the nature of a demurrer which was by the court sustained, and the jury, at the request of the court, returned a verdict against plaintiff and judgment was rendered accordingly. Plaintiff duly appeals.

The petition and answer are in conventional form and since no controversy arises thereon it is unnecessary to set them out here.

It appears from the evidence that Carrie E. O'Reilly died August 1, 1939, leaving the will upon which this action is based; that she had four children, two sons, Lee O'Reilly (plaintiff) and Jack O'Reilly, and two daughters, Alice O'Reilly and Ethel Black, defendants herein. Under the terms of the will testatrix gave Alice O'Reilly the home place and certain personal property; to her daughter Ethel she gave certain personal property; to the four children jointly she gave a certain piece of property in the city of Charleston, Missouri, in equal parts. There was no showing as to what the home place was worth or what the personal property owned by testatrix at the time of her death was worth. The only showing of the value of any of the property disposed of by the will was the piece of property in Charleston, given to the four children in equal parts, the value of which was estimated to be twelve or fifteen hundred dollars. Alice O'Reilly, one of the defendants, was single, lived at the home place with her mother from the time of the death of her father in 1930 until the death of her mother, the testatrix, in 1939, during which time they lived alone, the daughter Alice looking after the home and taking care of the mother who was an invalid. The daughter Ethel looked after her mother's business affairs. Ethel and the two sons of testatrix were married and maintained their own homes where they lived with their families. There is evidence that the children, during this period of time, were not always on friendly terms, sometimes quarreling among themselves, but never over the property owned by testatrix. Instances of quarrels between Alice and her brothers and sister-in-law are indicated, but none of a serious character or of particular import. There is some evidence that Alice quarreled with her mother after visits to their home by the brothers, particularly by her brother Lee, plaintiff herein, and his wife. In no instance, however, does it appear that there was any quarrel over the property or its distribution. An explanation of the trouble between the mother and Alice, if any, was given by plaintiff, Lee O'Reilly: "* * * Mother told me why she and Alice were having so much difficulty between them, it was because she was keeping company with a * * * man by the name of * * *. This did not meet with mother's approval. * * * My mother had to do pretty well what she wanted her to do or she threatened to leave with this man on several occasions; she had to do what she wanted her to do. Had to live there and take it."

The only evidence that Alice was unkind to her mother, the testatrix, appears from statements purporting to have been made by the mother and most of which were to plaintiff and his wife. Testimony of witnesses who visited in the home, including plaintiff and his wife and others, was to the effect that Alice took care of the home, looked after her mother well, attended to her wants and treated her kindly during the eight or nine years they lived together. It appears from disinterested witnesses and undisputed, that the mother stated she wanted Alice to have the home place; occasionally she stated that she loved her children equally and intended to treat them all alike. But the record is void of any evidence to the effect that either of the children talked to her about making her will, directed how it should be made or knew its contents until after her death. Testatrix was of sound mind at the time the will was executed and, it is agreed, that there is no evidence to show undue influence by the defendant Ethel Black.

Plaintiff's contention on this appeal is that there was sufficient substantial evidence to warrant the submission of the case to the jury on the theory that Alice exerted undue influence over the mother, and that the giving of defendants' instruction in the nature of a demurrer to the evidence constituted reversible error.

The rule is well established, requiring no citations, that in offering their demurrer to the evidence defendants admit, and the court must accept as true all evidence favorable to plaintiff and all reasonable favorable inferences that may be drawn therefrom, and all unfavorable evidence or inferences must be disregarded.

Undue influence as defined in cases of this character is such influence as developes from overpersuasion, coercion, fraud, or deception; an influence that restrains, controls, directs and diverts or coerces the will; that overcomes and confuses the mind, beclouds the judgment and is of such potency as destroys or enfeebles...