Rule v. Maupin

• Decision Date: 31 October 1884
• Citation: 84 Mo. 587
• Parties: RULE et al., Plaintiffs in Error, v. MAUPIN et al.
• Court: Missouri Supreme Court

84 Mo. 587

RULE et al., Plaintiffs in Error,

v.MAUPIN et al.

Supreme Court of Missouri.

October Term, 1884.

Error to Franklin Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

Comingo & Slover for plaintiffs in error.

(1) The declarations made by the testator to the witness Maupin, before and after the execution of the paper propounded as his will, were not competent evidence. Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Haynes, 24 Mo. 237; Spoonmore v. Cables, 66 Mo. 579; Trustees v. Peaslee, 15 N. H. 330; Greenleaf on Ev., sec. 290. It is impossible to tell the impression the declarations made on the jury, and if it was incompetent it was error to admit them. Ready v. Steamboat, 20 Mo. 264; Anderson v. Rome, etc., R. R., 54 Mo. 334; Belden v. Nicolay, 4 E. D. Smith, 17; Thompson v. Wilson, 34 Ind. 94; Morgan v. State, 31 Ind. 94; Ellingwood v. Bragg, 52 N. H. 488; Mussey v. Mussey, 14 Wis. 346; State Bank v. Dutton, 11 Wis. 370. The fourth instruction asked by plaintiffs should have been given. It correctly states the law with reference to undue influence, and the law on that subject is not correctly stated in any of the other instructions given, nor indeed is it stated at all. The second instruction given for defendants should have been refused. It is a comment on the evidence and misleading.Crews & Booth for defendants in error.

(1) The court did not err in admitting proof of the declarations of the testator made before and after the execution of the will. They were admissible as showing the state of the affections of the testator and his purposes in making the will. Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Haynes, 24 Mo. 236; Spoonmore v. Cables, 66 Mo. 579; Mueller v. St. Louis, etc., 5 Mo. App. 390; s. c., 73 Mo. 243; Thompson v. Stump, 62 Mo. 275. (2) There was no evidence to show undue influence. Spoonmore v. Cables, 66 Mo. 579. The existence of undue influence, unless the will was procured thereby, is immaterial. Brinkman v. Rueggesick, 71 Mo. 553. (3) There was no error in the instructions.

BLACK, J.

On September 7, 1867, Daniel Maupin made and executed a paper writing as and for his will. He thereby gave to each of his four daughters seven hundred dollars, and the balance of his property, consisting in part of a farm, he devised to his son James, making provision for the support of his widow. He died in 1880, when the will was proved in common form. The daughters bring this suit, joined with their husbands, against James and the widow, to contest the will, and to that end they allege that Daniel Maupin, at the date of the will, was not of disposing mind, and that it was procured by the undue influence of James Maupin. An issue of will or no will was framed and submitted to a jury. The verdict was for the will and a judgment was entered in accordance therewith, to reverse which the plaintiffs sued out this writ of error.

Daniel Maupin was a farmer, and, in a small way, carried on a blacksmith shop, and sometimes made chairs, tables and the like for the neighbors. His first wife died in 1860. He married the second time in 1863. At the date of the will the daughters were married and lived to themselves. James lived with the father and worked on the farm to the death of the father. In 1856 Daniel Maupin received a sunstroke which for a time severely affected his mind. There was much evidence to the effect that at the date of the will he was competent to, and did then, and for a period of several years thereafter, attend to his own business affairs. He was some sixty odd years of age at the date of the will. His general health was fair, though he had several spells of sickness at the date of the will. There was some evidence tending to show that his health and mind were then failing. The disposition he had made of his property by the will seems to have been well understood in the family at all times after it was made.

1. William Maupin testified without objection, to conversations with the testator in 1863, 1876 and 1878, in the first of which conversations he declared his intention to give the girls seven hundred dollars each, and to give the balance of his property to James. In the others he stated that he had done this. The conversation in 1876 took place at the house of the witness, when, among other things, Daniel Maupin stated his reasons, for making the will as he did, were that some of the children had not treated him right at the time he married his second wife, and had taken things that he thought belonged to him. The witness then stated that he thought the mental condition of the testator was good. This testimony as to what was said by way of giving the reasons for making the will was admitted over the objections of the plaintiff.

When and for what purposes the declarations of the testator may be received in evidence was considered in Gibson v. Gibson, 24 Mo. 227. The conclusion was there announced that these declarations, “so far as they are relied upon to furnish evidence of the facts they contain,” are but hearsay and should not be received, but they are “admissible when the condition of the testator's mind is the point of contention, or it becomes material to show the state of his affections, and they...