Shelton v. McHaney

• Decision Date: 21 March 1936
• Docket Number: 32646
• Parties: William Frank Shelton, III, an infant, by Edith Shelton, His Guardian, and Frank Joseph Shelton and Miriam Claire Shelton, Infants, by Rush Smith, Their Next Friend, Appellants, v. Hal H. McHaney, Lee Shelton, A. J. Langdon, Jr., Executors and Trustees of the Estate of William Frank Shelton, Jr., and Ruby Shelton
• Court: Missouri Supreme Court

92 S.W.2d 173

338 Mo. 749

William Frank Shelton, III, an infant, by Edith Shelton, His Guardian, and Frank Joseph Shelton and Miriam Claire Shelton, Infants, by Rush Smith, Their Next Friend, Appellants, v. Hal H. McHaney, Lee Shelton, A. J. Langdon, Jr., Executors and Trustees of the Estate of William Frank Shelton, Jr., and Ruby Shelton

No. 32646

Supreme Court of Missouri

March 21, 1936

Rehearing Overruled and Motion to Transfer to Banc Overruled March 21, 1936.

Appeal from Madison Circuit Court; Hon. I. N. Threlkeld Judge.

Affirmed.

Wayne Ely, Tom Ely, Jr., and Lyon Anderson for appellants;

Langdon Jones, Geo. Smith, D. M. Tesreau, and Leahy, Saunders & Walther, of counsel.

(1) Fraud, as an independent ground for contesting a will, exists where, through misrepresentation and deception, the testator is led into making a will different from what he would have made but for said false representation and deception. Gordon v. Burris, 153 Mo. 223, 54 S.W. 546; In re Ricks Estate, 160 Cal. 467, 117 P. 539; Davis v. Calvert, 5 Gill & J. 269, 2 Am. Dec. 282; Shirley v. Ezell, 180 Ala. 352, 60 So. 905; Page on Wills, sec. 181; Gockel v. Gockel, 66 S.W.2d 784; 1 Bigelow, Fraud, p. 571, sec. 5; Beach, Wills, sec. 107; 1 Redfield, Wills, p. 510, note 1; Stewart v. Elliot, 2 Mackey, 307; Smith v. Du Bose, 78 Ga. 413, 3 S.E. 309. (a) Fraud as an independent ground for contesting a will is recognized by the courts of this State. Gordon v. Burris, 153 Mo. 223, 54 S.W. 546; Moll v. Pollack, 8 S.W.2d 38; Spurr v. Spurr, 285 Mo. 163; Erickson v. Lundgren, 37 S.W.2d 629; Harvey v. Sullens, 46 Mo. 147; Gockel v. Gockel, 66 S.W.2d 784. (b) In testing the sufficiency of the plaintiff's evidence to raise an issue for the jury the same rules apply in a will contest as in other civil cases, namely, that all evidence in favor of the contestants must be taken as true, all contradictory evidence disregarded, and every inference favorable to plaintiff's case fairly deducible from the evidence produced considered as facts proved by contestants. Whittlesey v. Gerding, 246 S.W. 312; Turner v. Anderson, 260 Mo. 17; Burton v. Holman, 231 S.W. 633; Patton v. Shelton, 4 S.W.2d 706. (c) Where parties to any transaction do not deal upon an equal footing, as where a fiduciary relationship exists, the burden of proof is upon the party who benefits by the transaction to show that it was free from fraud. Cox v. Schnerr, 172 Cal. 371, 156 P. 509; Anderson v. Palmer, 111 Ore. 137, 224 P. 629; Wehner v. Wehner, 230 P. 458; In re Mallory's Estate, 99 Cal.App. 96, 278 P. 488; Atkinson v. Jones, 158 S.E. 650; Mors v. Peterson, 261 Ill. 532, 104 N.E. 216; Miles v. Pike Min. Co., 124 Wis. 278, 102 N.W. 555; McCowen v. Short, 118 N.E. 538; 25 C. J. 1120; 27 C. J. 46; 6 C. J. 710. (d) In a will contest, where it is shown by the plaintiffs' evidence that the person who drafted the will and was active in its execution had long occupied a confidential or fiduciary relationship with testator and will receive benefits under the will if established, a presumption of fraud and undue influence arises which takes the case to the jury even though defendant comes forward with rebutting evidence and plaintiffs offer no additional evidence. Mowry v. Norman, 204 Mo. 173; Canty v. Halpin, 242 S.W. 94; Burton v. Holman, 231 S.W. 630, 288 Mo. 70; Wendling v. Bowden, 252 Mo. 647; Rayl v. Golfinopulos, 233 S.W. 1069; Clark v. Crandall, 5 S.W.2d 383; Moll v. Pollack, 8 S.W.2d 38; Fowler v. Fowler, 2 S.W.2d 707; Morris v. Morris, 4 S.W.2d 459; Sittig v. Kersting, 233 S.W. 742; Cook v. Higgins, 290 Mo. 402, 235 S.W. 807; Ryan v. Rutledge, 187 S.W. 877; Loehr v. Stark, 332 Mo. 131, 56 S.W. 772; Heflin v. Fullerton, 37 S.W.2d 931; Mitchell v. Mitchell, 328 Mo. 793, 41 S.W.2d 792; Soureal v. Wisner, 13 S.W.2d 548, 321 Mo. 920. (e) Plaintiffs herein produced sufficient evidence from which a jury could find, independent of any presumption that defendant Hal H. McHaney perpetrated a fraud upon William Frank Shelton, Jr., in connection with the execution of the will in controversy. (f) There are many precedents in this State, which defendant McHaney could have found, that recognize the right of a testator to name the same person both as a beneficiary and trustee of a testamentary trust. Bixby v. St. Louis Union Trust Co., 22 S.W.2d 813; Rose v. McHose's Executors, 26 Mo. 59; Owens v. Ellis, 64 Mo. 77; Hook v. Dyer, 47 Mo. 214; Murphy v. Carlin, 113 Mo. 12, 20 S.W. 786; Marshall v. Myers, 96 Mo.App. 643, 70 S.W. 927; Foote v. Sanders, 72 Mo. 616; Turney v. Sparks, 88 Mo.App. 363; Cook v. Couch, 100 Mo. 29, 13 S.W. 80. (g) It is well established that where a lawyer undertakes to advise a client as to his legal rights, and makes statements regarding the law that are false, and which induce the client to execute an obligation to his injury, such conduct on the part of the lawyer constitutes a fraud. Security Savs. Bank v. Kellems, 9 S.W.2d 967; 1 Jones on Evidence (2 Ed.), pp. 208, 209. (2) In determining the issue of undue influence the plaintiffs herein were entitled to have the jury consider such evidence of fraud as was presented. Instruction 1 deprived plaintiffs of that right, and for that reason the court erred in giving said instruction. In re Stoddard's Estate, 174 Cal. 606, 163 P. 1010; Schulz v. Smercina, 1 S.W.2d 113. (3) Where fraudulent intent is the subject of inquiry, the evidence should be allowed to take a wide range, and evidence is admissible of subsequent acts of the party accused of the fraudulent intent, which have a rational tendency to explain the motive with which the principal act complained of was affected: Manheimer v. Harrington, 20 Mo.App. 297; Ball v. Grismore, 210 Mo.App. 16; Rice v. Lammers, 65 S.W.2d 154; Davis v. Vories, 141 Mo. 234; Wood v. United States, 16 Peters, 342; Jones Comm. on Evid., secs. 618-19; Cobb v. Follansbee, 79 N.H. 205, 107 A. 630; Flint v. Owl Land & Inv. Co., 122 Wash. 401, 210 P. 811; Liberty Bank v. Nonnenmann, 274 P. 568; Ross v. Miner, 64 Mich. 204; Ross v. Miner, 35 N.W. 60; Nichols Applied Evid., col. 3, p. 2321; Altman v. Ozdoba, 235 N.Y. 218, 142 N.E. 591; Minx v. Mitchel, 42 Kan. 688, 22 P. 709.

Orville Zimmerman and Ward & Reeves for respondents.

(1) We concede the law as stated by appellants in divisions A and B in their brief to the effect that fraud constitutes an independent ground for contesting a will and if the testator is by fraud and deception led to make a will to the disadvantage of contestors different from what he would have made but for said fraud, it is not his will. (a) Fraud cannot be predicated upon mere conjecture but may be inferred when it is a legitimate deduction from all the facts and circumstances in evidence, and the burden of proving fraud charged against the defendant is upon plaintiff; and that fraud is never presumed, and while it may be proved by circumstantial evidence, yet if the transaction relied upon to prove fraud is as consistent with honesty and good faith as with a fraudulent purpose, it will be referred to the better motive. Walsh v. Walsh, 285 Mo. 206, 226 S.W 236; Garesche v. MacDonald, 103 Mo. 10; Jones v. Nichols, 280 Mo. 664; Green v. Edmonds, 245 S.W. 381; Page on Wills, 1312, sec. 771; In re Bryson's Estate, 217 P. 525. (b) And evidence merely establishing circumstances of suspicion is not sufficient to establish fraud in will contest case. Page on Wills, 1312, sec. 771; Phillips v. Phillips, 148 S.W. 51. (c) Fraud is never to be presumed when the transaction may be fairly reconciled with honesty; and the burden is on the plaintiff to establish it, and the difficulty of proving fraud cannot in any way affect the necessity of proving it. 27 C. J., pp. 786-88, sec. 713; Twedell v. Treasure, 44 S.W.2d 227. (d) And in will contest cases, as in others, fraud is never to be presumed, but substantial evidence will carry the case to the jury and lack of it calls for intervention by the court. Huffnagle v. Pauley, 219 S.W. 378; Turner v. Anderson, 260 Mo. 16; Whittlesey v. Gerding, 246 S.W. 311; Gittings v. Jeffords, 292 Mo. 691; Gockle v. Gockle, 66 S.W.2d 870. (2) The fiduciary or confidential relationship which creates the presumption of undue influence and changes the burden of proof and requires, upon showing of such fiduciary relationship, that all cases of undue influence or fraud be rebutted by the person charged and prohibits a demurrer, only applies where the party having the confidential relationship with the testator is a donee and beneficiary under the will and receives gifts therefrom. Rayl v. Gulfinopulos, 233 S.W. 1072; Hegney v. Head, 126 Mo. 628; Tibbe v. Kamp, 154 Mo. 580; Mowry v. Norman, 204 Mo. 189. (a) The fiduciary relationship rule cannot apply to Hal McHaney because he was not a beneficiary under the will, hence it must not only be shown the relationship of attorney and client, but such attorney must have been a beneficiary and received as such under the will. Ryan v. Rutledge, 187 S.W. 878; Lane v. St. Denis Church, 274 S.W. 1105. (b) And the fact that Hal McHaney was appointed a trustee and executor and received fees as such does not make him a beneficiary under the will so as to put the burden of proof upon him in this case or make it an issuable fact for the jury and therefore it cannot be held that the "appointment of a fiduciary to discharge the duties of executor and trustee gives him any advantage which would not be reaped by a stranger if so designated by the testator." And hence said rule does not obtain. Ryan v. Rutledge, 187 S.W. 878; In re Livingston Appeal, 63 Conn. 70, 26 A. 470; Wentura v. Kinnerk, 319 Mo. 1078; In re Lenton Appeal, 104 Pa. 228; Page on Wills, 1253, sec. 734. (c) Contestants must make proof, not only of the fiduciary relationship and that the fiduciary...