Rogers v. Mary A. Troost's Admr.

• Decision Date: 31 January 1873
• Citation: 51 Mo. 470
• Parties: MARY GILLIS ROGERS AND SOPHIA GILLIS, Appellants, v. MARY A. TROOST'S Admr., Respondent.
• Court: Missouri Supreme Court

51 Mo. 470

MARY GILLIS ROGERS AND SOPHIA GILLIS, Appellants,

v.MARY A. TROOST'S Admr., Respondent.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Jackson Circuit Court.

Merriman, Hough and Cowan, for Appellants.

I. In almost every case like the present, where a will is contested on the ground that it has been procured by fraud and undue influence on the part of the principal devisee, the chief inquiry after ascertaining the character of the testator, is to ascertain the character of the devisee. (Nussear vs. Arnold, 13 Serg. & R., 327; Dietrick vs. Dietrick, 5 Serg. & R., 208; Dean vs. Negley, 41 Penn. St., 312; State vs. Shields, 13 Mo., 236; Day vs. State, Id., 423.)

II. The objections to the testimony offered were not sufficiently definite. The objections as shown in the record were that the testimony was incompetent and irrelevant. The objections should be such as will enable the party offering the testimony to obviate them if possible, and no specific objections can be pointed out in this court, that the record shows were not made in the court below.

The objections made as appears by the record, should have been disregarded. (Clark vs. Conway, 23 Mo., 442; Grim vs. Gamache, 25 Mo., 41; Greene vs. Gallagher, 35 Mo., 226; State to the use, etc., vs. King, 44 Mo., 238.)

Black, Hicks and Sheley, for Respondent.

I. In civil actions the allegata must be proved or disproved by particular facts, and not by general reputation. (Potter vs. Webb, et al., 6 Maine, 18; Gutzwiller vs. Lackman, 23 Mo., 172.)

II. The court did not err in rejecting the testimony offered by plaintiffs to prove the reputation of Mary A. Troost for chastity to be bad. (Anderson Exr. vs. Long, 10 Serg. & R., 60; Wright vs. McKee, 37 Verm., 164; Gough vs. St. Johns, 16 Wend., 646.)

III. Putting character in issue is a technical expression, and confined to certain actions, such as criminal conversation and slander. The allegation charging her with undue influence over the mind of the testator in procuring the will was not putting her character in issue. (Anderson's Executor vs. Long, ubi supra.)

VORIES, Judge, delivered the opinion of the court.

William Gillis died in Jackson County in July 1869, leaving a will. Plaintiffs are his only children, their mothers being Delaware Indians to whom he is alleged to have been married. Gillis left a large estate of which he by his will only bequeathed plaintiffs ten dollars each, leaving all the remainder of his large estate to Mary A. Troost, his niece, who resided with him at the time of his death, plaintiffs not having resided with him for many years. Mary A. Troost was by the said will of Gillis appointed executrix thereof, and at the November term of the Probate Court of Jackson County she procured the will to be probated, and entered on the duties of executrix of said estate. In the month of February, 1870, plaintiffs commenced this suit against the said Mary A. Troost under the provisions of the twenty ninth section of the statute of this State concerning wills, to contest the validity of the will. Since the suit has been pending Mary A. Troost has died, and the present defendants who succeed to her rights in the premises have been made defendants in her place.

The charges in the petition by which it is claimed that the will is invalidated are, “That the will was not executed according to law”--“That said Gillis was not at the time of the execution of the will, of sound and disposing mind and memory and was not capable in law of making a will”--“That for a long time prior to the pretended execution of said instrument purporting to be the will of William Gillis, and up to the time of his death, and especially at the time of the pretended execution of said will, the said William Gillis was under the undue and improper influence of the defendant, Mary A. Troost, and was by reason thereof incapable in law of making a will.”

“That said Mary A. Troost sought by her constant and uninterrupted association with and attendance upon the said William Gillis, and by the use of those enticements, allurements and blandishments peculiar to a female, to so work upon and overcome the natural desires and inclinations of the said William Gillis as to induce him, the said William Gillis, to execute said instrument aforesaid, purporting to be the last will and testament of the said William Gillis; and at the time of executing the same, the said William Gillis was under improper restraint and undue influence from the said practices, enticements and allurements of the defendant Mary A. Troost. It is further stated that at the time of the pretended execution of the will, Gillis was about seventy years old--that his old age, declining health, and debility of mind and body wholly incapacitated him to resist the persuasions and deceitful arguments of the said Mary A. Troost, and that she did then and for a long time previously and up to the time of the death of the said William Gillis, take possession and control of his mind, and poisoned and estranged it to such an extent as to make him disown, forget and leave as castaways the plaintiffs, his only legal offspring, in order and to the intent that she might become the legatee of the whole estate of the said William Gillis.” These charges were all specifically denied by the answer.

When the cause was called for trial and a jury impanelled and sworn, this issue was submitted to them for trial.

“Is the paper writing mentioned in the pleading and now here shown to the jury, the last will and testament of William Gillis deceased?”

The evidence produced and given to the jury on the trial by the several parties, as it appears in the record of the case, is quite voluminous, but it is unnecessary to refer to it for the purpose of a proper understanding of the points to be decided by this Court, further than to say that the evidence given tended to prove the issues devolving upon each side of the case.

After evidence had been given to prove the length of time Mrs. Troost had been residing in the house with William Gillis, and the influence that she seemed to have over him, one William Mulkey was introduced by the appellants who testified that he had been acquainted with William Gillis and Mrs. Troost for nearly thirty years, and that they had resided together all of that time; that she managed his household affairs, &c., &c. The witness then stated that he was acquainted with the general reputation of Mary A. Troost for chastity in the community where she resided and had resided for many years. The...