Sanford v. Holland
| Decision Date | 30 December 1918 |
| Parties | GRADY HOLLAND SANFORD, Appellant, v. BERTONIA HOLLAND et al |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Guy D. Kirby, Judge.
Affirmed.
T. J Delaney and Neville & Gorman for appellant.
(1) Courts while solicitous to maintain the paper writing as the will of an alleged testator against the complainants of disappointed expectations, should be equally solicitous to prevent imposition either through testamentary incapacity or by means of undue influence. In many cases, we respectfully submit courts have placed too much emphasis on the abstract right of one to dispose of his own, and made cases turn on such right. Before such rule is practically invoked and applied, the court should determine, 1st, the question of testamentary capacity, and, 2nd, the absence of undue influence. Unless and until these questions are solicitiously considered and satisfactorily disposed of, or unless an alleged inequality in distribution is urged as the chief and only grounds for contest, the right to do as one pleases with his own is and should be secondary. (2) Regardless of the evidence or of the weight thereof, the court erred in giving peremptory instructions establishing the will on the issue of testamentary incapacity. The burden was upon the proponents not only to show a due and formal execution complying with the forms prescribed, but to show testamentary capacity at time of such execution. The question of the sufficiency of the evidence was for the jury who might credit or discredit the testimony offered. The court cannot usurp the function of a jury on a matter requiring a finding that a given fact is established. The court may properly declare that given evidence adduced is not sufficient to establish a certain fact, whether alleged by plaintiff as his cause of action, or by defendant in his defense. But the court has no authority to declare that a fact affirmed is sustained by the evidence even if there be no counter witnesses or strictly counter testimony. The court may declare a given cause of action not proven, but can never declare it is proven. The court may declare a given defense not sustained by evidence, but can never say that it is established. This distinction is clear on principle and sustained by authority. Gammon v Laclede Co., 145 Mo. 502; cited in Mowry v Norman, 204 Mo. 191; James v. Assn., 148 Mo. 1 111 Mo.App. 540; Williams v. Railroad, 257 Mo. 112. (3) The paper in writing was not attested by two competent witnesses as required by law. One witness, Arch A. McGregor, was not a competent witness under the evidence which shows that he was at the time interested in the subject-matter of the will. He, or his company of which he was president and chief owner, was at the time of such attestation and for a long period of time theretofore had been, a tenant of deceased of part of the real estate disposed of by said alleged will. It was shown (plaintiff offered to show and evidence was excluded, which is assigned for error) that the rental charged was less than reasonable, much less than current rentals on business property near the Public Square. He or his company was at said time and for many years prior to signing of said paper in writing have been the owner of a tract of ground about 100 by 117 feet immediately adjoining and used in connection with the tenant-occupied property. He and his company were unsecured creditors at the time of Charles Holland, the son of the deceased, a chief beneficiary under said paper in writing. For these reasons he was vitally interested in the question, "Who is to be the landlord?" (4) Even if such interests and relationship did not disqualify him as a witness these matters and others and all the circumstances in evidence certainly affect his credibility and were matters for the jury in determining the weight of his evidence. It was for the jury to say whether or not his testimony and the testimony of Dr. Ralston were sufficient. The jury had a right to weigh such testimony and had a right to declare under all the circumstances a lack of testamentary capacity or that undue influence was exerted. And this even on the theory that the court had the right to act peremptorily on the question. Besides in this case, the personal and family physician was the other attesting witness. A due regard for the position in which a physician thereby places himself should make him pause. Where such physician is used as an attesting witness it is an ear mark against proponents. Turner v. Andrews, 260 Mo. 1. In this connection, the court should not lose sight of the other ear mark, the badge of fraud, the certificate of capacity given by the physician. Major v. Kidd, 261 Mo. 607; Mowry v. Norman, 204 Mo. 173, 223 Mo. 463. (5) Whether it be considered on the question of testamentary capacity and whether arising on the evidence adduced by the proponent alone or on the evidence of the whole case, or whether it be considered on the issue of undue influence, the failure of the members of the family to testify, justify such inferences as not only warrant but demand submission of such issues to the jury. Mayberry v. McClurg, 74 Mo. 375; Leaper v. Bates, 85 Mo. 224; Levett v. LaForce, 71 Mo. 354; Massey v. Young, 73 Mo. 273; Cass County v. Greene County, 66 Mo. 512; Baldwin v. Whitcomb, 71 Mo. 658; Eck v. Hacker, 58 Mo. 235; Bent v. Lewis, 85 Mo. 452. (6) On all the evidence the contestant was entitled to the opinion of the jury on the question of testamentary capacity. So also on all the evidence the contestant is entitled to the finding of the jury on the question of undue influence. Major v. Kidd, 261 Mo. 607; Schriebel v. Schriebel, 261 Mo. 706; Turner v. Anderson, 260 Mo. 1; Andrew v. Linebaugh, 260 Mo. 625; Grundmann v. Wilde, 255 Mo. 109; Byrne v. Fulkerson, 254 Mo. 97; Wendling v. Bowden, 252 Mo. 647; Bensberg v. University, 251 Mo. 641; Byrne v. Byrne, 250 Mo. 632; Naylor v. McRue, 248 Mo. 423; Goodfellow v. Shannon, 197 Mo. 271; Crum v. Crum, 231 Mo. 626; Carl v. Gabel, 120 Mo. 297; Gay v. Gillilan, 92 Mo. 250; Dausman v. Rankin, 189 Mo. 677; Buford v. Gruber, 223 Mo. 231; Halton v. Cochran, 208 Mo. 314; Mowry v. Norman, 209 Mo. 173, 223 Mo. 463; Roberts v. Bartlett, 190 Mo. 680; Teckenbrock case, 209 Mo. 533; Cash v. Lust, 142 Mo. 630. (7) Mr. Holland spent weeks in the preparation of the February will; conferred about it on several occasions; read it; had it read in presence of wife and even after this dictated a slight change. And yet we find him in June declaring to McGregor that he did not understand the former will, did not realize what was in it; but that he knew the contents of the one about to be executed when there is no evidence when it was prepared or that Mr. Holland ever read it or even had it read to him. Those who could throw light on this, the wife, family, the scrivener of the will, maintain absolute silence. Old age, sickness, infirmities are to be considered in passing upon both questions of capacity and undue influence. Schriebel v. Schriebel, 261 Mo. 706. Discrimination and inequality in dispositions along with other facts are entitled to weight. Schriebel v. Schriebel, 261 Mo. 706. There was substantial evidence of both mental incapacity and undue influence. Therefore a peremptory instruction was error. Turner v. Anderson, 260 Mo. 1; Goodfellow v. Shannon, 197 Mo. 271; Crum v. Crum, 231 Mo. 626; Naylor v. McRue, 248 Mo. 423; Major v. Kidd, 261 Mo. 607. There is no question from this record that towards the last and especially after the return of Mr. Holland from Claremore that Mrs. Holland, Charles Holland and Arch McGregor had an undue influence over the mind of Mr. Holland. This being shown, and from the record this conclusion is irresistible, it follows that the burden is upon the proponents to show that they did not exercise or exert such influence. This was not done. Mrs. Holland and Charles did not submit to a searching of conscience. Maddox v. Maddox, 114 Mo. 49; Gay v. Gillilan, 92 Mo. 261; Gravius, Admr. v. Williams, 44 Mo. 465; Harvey v. Sullens, 46 Mo. 147; Bradford v. Blossom, 190 Mo. 143. In reality every case in this court in which a will has been sustained either by jury or on peremptory instructions, emphasis has always been placed by the court on the proven fact that the paper writing in dispute was prepared by the testator or the terms were directed by him, or that same was read to him; and this by testimony other than the mere declaration by testator of such fact. In this case, the scene opens with the manual signing. Everything that preceded is hidden, concealed or suppressed. The only glimpses we have in this case of one of the most momentous acts in a man's life, the execution of a will disposing of a large estate and in which act the future of all his loved ones is involved, is a little jollity about the spelling of testator's name and the character of handwriting. In Roberts v. Bartlett, 190 Mo. 680, comment is made in the decision on the absence of testimony showing when and where will was prepared. (8) The burden of proof, it is true, is upon the plaintiff, contestant, to show the exercise of undue influence; but as stated and shown, if an undue influence is shown to exist, it is for proponents to show that such influence was not exercised. Again if it be shown that a fiduciary relation existed, then the burden shifts and the proponents must show affirmatively that undue influence was not exercised and such issue must be submitted to the jury. A fiduciary relation is shown in this case. Byrne v. Byrne, 250 Mo. 632; Gay v. Gillilan, 92 Mo. 264. Where such relation is shown to exist, the law even indulges in presumption of undue influence. Campbell case, 162 Mo. 644; Hegney case, 126 Mo. 627-28...
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