Soureal v. Wisner
| Decision Date | 01 February 1929 |
| Docket Number | No. 27195.,27195. |
| Citation | 13 S.W.2d 548 |
| Parties | WILLIAM SOUREAL et al. v. CECELIA BLOOMFIELD WISNER et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Randolph Circuit Court. — Hon. Allen W. Walker, Judge.
AFFIRMED.
Major J. Lilly and Redick O'Bryan for appellants.
(1) The court erred in overruling defendants' (proponents') demurrer to the evidence offered at the close of the plaintiffs' evidence, and at the close of the whole case. (a) There was no evidence of mental incapacity. Smarr v. Smarr, 6 S.W. (2d) 860; Crum v. Crum, 231 Mo. 638; Bush v. Bush, 87 Mo. 480; Bushman v. Barlow, 292 S.W. 1040; Berkemeier v. Reller, 296 S.W. 739; Archambault v. Blanchard, 198 Mo. 426; Southworth v. Southworth, 173 Mo. 59; Winn v. Grier, 217 Mo. 420; Sayre v. Trustees, 192 Mo. 95; Bensberg v. Washington University, 251 Mo. 641; Hughes v. Rader, 183 Mo. 705; Lindsey v. Stephens, 229 Mo. 600; Mowry v. Norman, 223 Mo. 463. (b) There was no evidence of any undue influence exercised by the beneficiary, Cecelia Bloomfield Wisner. Smarr v. Smarr, 6 S.W. (2d) 860; Gibony v. Foster, 230 Mo. 317; Frohman v. Lowenstein, 303 Mo. 459; Lindsay v. Shaner, 291 Mo. 311; Bushman v. Barlow, 292 S.W. 1040; Brinkman v. Ruggesick, 71 Mo. 553; Carl v. Gabel, 120 Mo. 283; McFadin v. Catron, 138 Mo. 197; Turner v. Anderson, 236 Mo. 533; Kleinlein v. Krauss, 209 S.W. 933; Land v. Adams, 229 S.W. 158; Jones v. Jones, 260 S.W. 793; Van Raalte v. Graff, 253 S.W. 223; Schierbaum v. Schemme, 157 Mo. 16; Doherty v. Gilmore, 136 Mo. 419. (2) The court erred in submitting this cause to the jury and failing to direct a verdict establishing the will. Goedecke v. Lindhorst, 213 S.W. 43; Sanford v. Holland, 207 S.W. 818; McFadin v. Catron, 138 Mo. 226; Story v. Story, 188 Mo. 128; Teckenbrock v. McLaughlin, 209 Mo. 540; Hayes v. Hayes, 242 Mo. 172; Southworth v. Southworth, 173 Mo. 73; Williams v. Railroad, 257 Mo. 87. (4) The court erred in giving Instruction 7, for the reason that there was no evidence to support it. Byrne v. Fulkerson, 162 S.W. 171; Van Raalte v. Graff, 253 S.W. 223; K.C. Ry. Co. v. Couch, 187 S.W. 64. (5) There is no competent evidence to support the verdict. Hughes v. Rader, 183 Mo. 709.
Willard P. Cave for respondents.
(1) There was ample evidence to support the charge that the will was procured through undue influence of the daughter, Cecelia Bloomfield Wisner. (2) All the remaining assignments of error have to do with the giving of the various instructions in the case. (3) Instruction 7 submits to the jury the question as to whether or not Cecelia Bloomfield Wisner occupied a confidential and fiduciary relation with her mother. The testimony of various witnesses shows that the daughter, Cecelia Wisner, lived with her mother, looked after her business, signed all of her checks since the year of 1918 when Dan died, and in fact kept all the other children from living with or being around their mother. In other words, took possession of her mother and excluded the balance of the family from contact with her, and then by the pretended will got the major portion of the property willed to her. There is no question that this daughter dominated the mother and ran her business and affairs as if they were her own, and the testimony of the co-defendant, Laura Neal, is most significant indeed. By referring to the testimony of the defendant, Laura Neal, who is one of the principal beneficiaries under the alleged will, it will be seen that the mother never talked anything over with Laura and the testimony shows that Cecelia attended to everything for her mother and had done so ever since her mother had lived with her. (4) Undue influence may be established by circumstantial evidence. 2 Alexander on Wills, 911; Grundeman v. Wilde, 255 Mo. 109; Naylor v. McRuer, 248 Mo. 458; Turner v. Anderson, 236 Mo. 541; Moll v. Pollack (Mo. Sup.), 8 S.W. (2d) 38. (5) Where a confidential relive together in the same house, it is not easy to establish an allegation exists between the principal devisee and the testator, and they tion of undue influence by direct or positive proof, nor it is necessary to do so. Herster v. Herster, 116 Pa. St. 612; 2 Alexander on Wills, par. 604; Mowry v. Norman, 204 Mo. 189. (6) Under ordinary circumstances the burden is upon plaintiffs, throughout, to show undue influence, and upon the defendants to show mental capacity and the legal execution of the will. However, if plaintiffs show a state of facts which establish a fiduciary relation, or some such similar confidential relation, between the defendant, a principal beneficiary, and the testator, then upon that showing the burden shifts. Not only this, but by proof of such a relation and such bequest, the law indulges the presumption that undue influence has been used. Campbell v. Carlisle, 162 Mo. 644; Hegney v. Head, 126 Mo. 627; Roberts v. Bartlett, 190 Mo. 702; Bradford v. Blossom, 190 Mo. 143; Dausman v. Rankin, 189 Mo. 708; Maddox v. Maddox, 114 Mo. 40; Norton v. Paxton, 110 Mo. 456; Gay v. Gillillan, 92 Mo. 250; Maddox v. Maddox, 114 Mo. 35; Carl v. Gabel, 120 Mo. 283; Berberet v. Berberet, 131 Mo. 410.
This suit was instituted on September 10, 1925, in the Circuit Court of Randolph County, and is a statutory contest of the will of Josephine Bloomfield, deceased (hereinafter for convenience called testatrix), who resided for many years immediately preceding her death in the city of Moberly, in Randolph County. The plaintiffs, William Soureal and Pearl Davis, are respectively son and granddaughter of testatrix; defendants Cecelia Wisner and Laura Neal are daughters of testatrix, and defendant Daniel Bloomfield is a grandson of testatrix. The petition is in the usual form and alleges that testatrix was the owner of real estate and personal property in excess of $15,000, and it further alleges unsoundness of mind on the part of testatrix; that the execution of the will was procured by fraud and undue influence on the part of Cecelia Wisner, and that confidential relations existed between said defendant and testatrix at the time of the execution of the will. The joint answer of defendants Wisner and Neal consisted of a general denial, and an allegation that the will had been executed in due form, duly attested by two witnesses, etc., and prayed that the same be established as the last will and testament of testatrix. The separate answer of defendant Bloomfield, made by his guardian for him, consisted of a general denial. A trial before a jury resulted in a verdict setting aside the will, and defendants have appealed.
The will in question was written by Jerry M. Jeffries, a member of the Randolph County Bar, and witnessed by him and C.A. Selby, a Moberly merchant. The will is as follows:
The defendants' evidence tended to show that a day or two before the execution of the will, testatrix went to the office of Mr. Jeffries and talked to him about the preparation of the will; she was accompanied to his office by her two daughters, defendants Wisner and Neal. These defendants did not remain in the room while testatrix was talking to Mr. Jeffries. After making notes, Mr. Jeffries agreed to prepare the will and bring it to testatrix for execution. Someone gave Mr. Jeffries the description of the property, but he was uncertain who it was, either testatrix or one of her daughters. Testatrix was a native of France, and while she...
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...speak when he should, will not be heard to speak when he would." Morgan v. Mulhall, 214 Mo. 451, 114 S.W. 4, 7, 8. In Soureal v. Wisner, 321 Mo. 920, 13 S.W.2d 548, 552, it was said: "In the trial of civil cases, many important duties rest upon the attorneys for both plaintiff and defendant......