Riley v. Sherwood

• Decision Date: 17 May 1898
• Citation: 144 Mo. 354,45 S.W. 1077
• Parties: RILEY et al. v. SHERWOOD et al.
• Court: Missouri Supreme Court

45 S.W. 1077

144 Mo. 354

RILEY et al. v. SHERWOOD et al.

Supreme Court of Missouri, Division No. 2.

May 17, 1898.

WILLS — TESTAMENTARY CAPACITY — UNDUE INFLUENCE — EVIDENCE — INSTRUCTIONS.

1. In an action to set aside a will on the ground that testatrix was not of sound mind, it appeared that she had been an active business woman most of her life, and had died in her seventy-eighth year, two years after the execution of her will. Defendant's witnesses testified to business transactions with her, that she had always been a good business woman, and that her mind was not impaired in her later years. The only evidence to contradict this was that of plaintiff's witnesses, who testified that she was childish, as shown by her particularity about her business matters, telling over and over the story of her girlhood, changing from a reserved and retiring disposition to a great talker, and in taking a great fancy to a son-in-law, whom she had formerly disliked, all of which was considered by physicians as evidence of unsound mind. Held, that the evidence failed to show testamentary incapacity.

2. The undue influence necessary to set aside a will must be such as amounts to overpersuasion, coercion, or force, destroying the free agency and will power of the testator.

3. Evidence that a son-in-law, whom testatrix had disliked up to a few years before her death, had in her later years, while in her town as a commercial traveler, made his headquarters at her house, though he paid his board to her tenant, was affectionate in speech and manner towards her, and was in town the day she made her will, but not present when it was drawn up by her attorney, does not of itself show undue influence on his part.

4. Instructing the jury that if they believe that testatrix was weak-minded, and that some other person, by cunning contrivances, or by flattery, or by any pressure, overcame her own volition, and caused her to make the will in question, then there was such undue influence as invalidates the will, and "that such undue influence is not measured by degree or extent, but that it is sufficient to invalidate the will, however slight," was error.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Action by J. M. Riley and others against C. C. Sherwood and others to set aside the will of Mrs. E. A. Shootman, deceased. From a judgment for plaintiffs, defendants appeal. Reversed.

W. M. Williams, W. W. Fry, and W. H. Kennan, for appellants. Geo. Robertson, for respondents.

GANTT, P. J.

Mrs. E. A. Shootman died in Mexico, Mo., in February, 1895, at the age of 78 years. She left, surviving her, five daughters (Mrs. Georgiana Riley, Mrs. Mollie Showers, Mrs. Minnie Sherwood, and Mrs. Fannie Tyrrell) and one son (Lucian E. Shootman). Her children were all married, and had homes of their own. The old lady lived in some rooms over one of her business houses in the city of Mexico, and ordinarily stipulated for her board and necessary attention when leasing her other rooms to her tenants on the same floor. She had moved to Mexico, with her husband and children, from Fulton, about the close of the war. We infer that her husband had little or no property at that time; and, soon after their advent in Mexico, Mrs. Shootman began to earn her own living, and provide for her family, by engaging in the millinery business and dressmaking. By her own efforts, and the assistance of her children, the property which forms the bone of contention in this case was accumulated, with the exception of a legacy she received about 1873 or 1874 from Virginia, which is variously estimated from $800 to $1,900. At the date of her death, Mrs. Shootman owned two brick business houses in Mexico, of the value of $8,500, a vacant lot in said city, and a small residence occupied by her son, Lucian, and 320 acres of land in what was Garfield county, Kan., estimated to be worth $200, and about $1,200 worth of personal estate. On the 24th of June, 1893, she executed her last will and testament, duly attested by William H. Kennan, Esq., and R. R. Arnold, cashier of the First National Bank of Mexico. The will was drawn by Mr. Kennan. By this will she devised the two storehouses and the vacant lot to her two daughters Mrs. Sherwood and Mrs. Tyrrell, "to have and to hold as their sole and separate property, free from the care and control of their husbands." To Lucian, her son, she gave the residence lot occupied by him for his life, remainder at his death to his two youngest daughters, and $500. To Mrs. Riley she gave $500, and to Mrs. Showers $1; assigning as a reason why she did not give her more that she had theretofore "advanced to her goods and money to equal $6,000." This will was duly probated in the probate court. The present suit, to have said will declared not the last will and testament of Mrs. Shootman, was commenced by Mrs. Riley and Mrs. Showers, and made returnable to the June term, 1895, of the Audrain circuit court. A trial was had at the same term, and a verdict and judgment rendered that said paper writing was not the last will of Mrs. Shootman. From that judgment the defendants appeal. Other necessary facts will be stated in the course of the opinion.

1. The petition counts upon two grounds to set aside the will: First, that Mrs. Shootman was not of sound mind and memory; second, that the will was procured by undue influence of her daughters Mrs. Tyrrell and Mrs. Sherwood, and their husbands, and particularly of C. C. Sherwood, the husband of Mrs. Sherwood. The evidence on the part of the defendants was abundant to show that Mrs. Shootman had been a very energetic business woman, and by her thrift, industry, and economy had accumulated about $12,000 worth of property, over and above the support of herself and children, and was fully competent to manage her affairs, and dispose of the estate by her will. Mr. Kennan, the attorney who drew the document, testified: He had known Mrs. Shootman for 26 years. Had resided in Mexico, the city in which she lived, during all that time. That she was a fine business woman, and of excellent mind, — a determined and positive character, and careful in her business matters. Had often done business for her. He detailed the circumstances attending the draft of the will. Mrs. Shootman sent for him to come to her rooms. She had fallen and broken her thigh some 15 years previous to this time, and could get up and down stairs only when assisted, and then with much inconvenience to herself. He went to see her. She desired him to prepare her will. He sat down, and took notes as she dictated, and then went to his office and drew the will, took it back, and read it over to her; and, after she expressed herself as satisfied with it, he went after Mr. Arnold, the cashier of the First National Bank, and they returned to her room. She signed it, and then Mr. Arnold and Mr. Kennan attested it as witnesses. Nobody else was present at the time. She then took it and put it away. She talked about all of her property, and mentioned a piece of Kansas land that she said was mortgaged, and was sandy and worthless; and she said she would not put it in. Mr. Arnold, who was evidently entirely disinterested, testified that he had known Mrs. Shootman since 1872; that she did business with the bank of which he was cashier. He says: "I always thought she was a good, fair, average business woman. She evidently had a good memory." He recalled that she had assumed a mortgage on some Kansas property which she had purchased, and he had paid this interest for her, and the taxes on that land, through his bank. In regard to that he says, "She would sometimes ask me if it was not about time that interest was due;" and he could not remember without consulting his books, but would ask her when she sent the last draft, "and she could tell me exactly, and I would go to the bank, and find I had sent the draft at that time." He continued his acquaintance with her up to a month or two of her death, and long after the execution of the will, and he thought her mind was as clear and sound as it ever had been during his long acquaintance. B. L. Locke, for many years county clerk of Audrain county, testified that she was a bright, sensible woman, methodical in her business, and a good manager. W. C. Gallaway, a general salesman for the firm of D. B. Fisk & Co., of Chicago, testified: He had sold Mrs. Shootman goods for 25 years. Saw her two or three times every year. After she went out of business, when he would go to Mexico he would go to see her, and spend the evening with her. He always considered her mental condition to be good, and it was as good in 1893 as it ever was. To the same effect is the evidence of a number of other witnesses for defendants, and, we may add, of those for plaintiffs, with this qualification: That plaintiffs' witnesses all, or nearly all, testified that in their opinion Mrs. Shootman was childish; and, when interrogated as to their definition of "childishness," they explained that she was very particular about her business. She required her tenants to incorporate in their checks in payment of rent a statement of what month it was given for. She was very solicitous that her own dishes and other small articles should be replaced in her own room after they had been used in her tenants' rooms. On one occasion she was known to have cried because one of her tenants had left her without anything to eat in her house. It was said: That she was given to repeating the same direction; to telling over and over the story of her past life, — especially to recounting incidents of her life when a girl or young lady in Salem, Va. That she was a great talker, especially after she was confined to her rooms after she had suffered from a broken thigh. Mrs. Riley, one of the plaintiffs (a daughter who had married and left home before Mrs. Shootman and her other daughters had commenced and carried on the millinery business), testified: Her moth...