Spurr v. Spurr
| Decision Date | 02 December 1920 |
| Parties | CHARLES SPURR et al. v. GEORGE SPURR et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Reversed and remanded.
Henry W. Blodgett, George B. Webster and Walter N. Fisher for appellants.
(1) In the absence from the record of the defendants William Jackson and Tom Spurr, or their legal representatives, no valid judgment on the will could be rendered. They were essential parties, being both legatees and heirs at law, and the court had been advised of their deaths. The motion in arrest of judgment should therefore have been sustained and in overruling it the trial court committed fatal error. Eddie v. Parke, 31 Mo. 513; Wells v. Wells, 144 Mo. 198; Parke v. Smith, 211 S.W. 62; Currant v. O'Callighan, 125 F. 657; Brown v Riggin, 94 Ill. 560; Reformed Church v. Nelson, 35 Ohio St. 638; McMaken v. McMaken, 18 Ala. 576. (2) The trial court erred in admitting over the defendants' objection the testimony of Dr. Rule, the testator's attending physician and permitting him to testify as to information acquired from the testator in his professional capacity. Gartside v. Ins. Co., 76 Mo 446; Ex parte Gfeller, 178 Mo. 267. None but the executor could waive the privilege of the deceased to have the physician's knowledge kept in confidence. Estate of Flint, 100 Cal. 309; Houston v. Simpson, 155 Ind. 62; Staunton v. Parker, 19 Hun, 55. The courts will not look with favor upon alleged implied waivers and will not permit the statute to be thus nullified. Smart v. Kansas City, 208 Mo. 162; Beave v. St. L. T. Co., 212 Mo. 357; Obermeyer v. Logeman C. M. Co., 229 Mo. 112. (3) The instructions, as a whole charge, were inconsistent, erroneous and misleading. The seventh was self-contradictory and in conflict with the sixth. (4) The instructions were erroneous in specific instances. (a) The twelfth instruction was not only in conflict with the third, and was erroneous in its declaration of the law of presumptions. Lawson, Presumptive Ev. (2 Ed.) p. 652; Richmond v. Aiken, 25 Vt. 326; Douglass v. Mitchell's Exrs., 35 Pa. St. 443; Glick v. K. C. Ry., 57 Mo.App. 104. It also submitted to the jury a proposition on which there was no evidence. (b) The ninth instruction was erroneous in that it authorized the jury to find against the will on the grounds other than those set up in the petition. It told the jury that they must so find if they believed that the testator was so weakened by the causes stated in the petition "or for any other reason" that he was susceptible to undue influence, without even requiring them to find that such influence was exercised. (c) The eleventh instruction was erroneous in that it singled out particular portions of the evidence and unduly commented upon them, and in that it omitted some of the necessary elements of undue influence. (5) There is no evidence in the record sufficient to sustain the verdict, and it was error to send the case to a jury at all. Hahn v. Hammerstein, 198 S.W. 833; Hutsell v. Burris, 199 S.W. 149; Conner v. Skaggs, 213 Mo. 334; Current v. Current, 244 Mo. 429; Winn v. Grier, 217 Mo. 420; Giboney v. Foster, 230 Mo. 131. (a) There is a total absence of evidence that testator was not of sound and disposing mind at the time the will was excuted. The only evidence as to that is strongly to the contrary. (b) There is a total failure of proof as to insanity and alcoholic dementia. The evidence of the contestants on these issues did not even tend to support them. (c) There is no sufficient evidence of undue influence so exercised as to result in the production of a will different from the intent of the testator to make. All the contestants' proof shows only such an influence as results from affection and gratitude and fails to show the exercise of even that. Hall v. Hall, 37 L. J. (P. & M.) 40; Hutsell v. Burris, 199 S.W. 149; Hahn v. Hammerstein, 198 S.W. 833.
Edward A. Knapp, Robert C. Grier and James F. Hudson for respondents.
(1) The absence of William Jackson and Tom Spurr and their legal representatives, if any, did not invalidate the judgment, as all essential parties were before the court. William Jackson and Tom Spurr having died before the testator. Wattenberger v. Payne, 162 Mo.App. 434; Kischman v. Scott, 166 Mo. 214; Louis v. Luckert, 221 U.S. 554; R. S. 1909, secs. 1804, 1800; Young v. Robinson, 122 Mo.App. 195. (2) The testimony of Dr. Rule, one of testator's attending physicians, was properly admitted. In a will contest all claiming under the deceased, either devisees or heirs, may call the attending physician as their witness. Thompson v. Ish, 99 Mo. 177. (3) Appellants' objections to instructions given were not well taken, for such instructions were proper and covered by decisions of this court. (a) The instruction referred to in appellants' brief as the "7th given for plaintiffs," as to burden of proof of sound and disposing mind and memory of testator, is a correct statement of the law and has been approved by this court. Major v. Kidd, 261 Mo. 607; Goodfellow v. Shannon, 197 Mo. 278; Lefever v. Stephenson, 193 S.W. 841. It appears from the face of the instruction referred to in appellants' brief as the "6th instruction given at the request of defendants" that said instruction is not inconsistent with Instruction 7. (4) The instructions specifically objected to were proper. (a) The instruction referred to in appellants' brief as "the 12th instruction given at the request of plaintiffs," as to the presumption arising from fiduciary relationship, was covered by abundant testimony and in form has been approved by this court. Mowry v. Norman, 223 Mo. 475; Siebert v. Hatcher, 205 Mo. 83; Byrne v. Byrne, 250 Mo. 632; Grundmann v. Wilde, 255 Mo. 109. (b) The instruction referred to in appellants' brief as "the 11th instruction," to the effect that unequal distribution of property by the testator among his heirs was one of the circumstances which it was proper for the jury to consider in connection with the issue of undue influence, is proper under the decisions of this court. Byrne v. Byrne, 250 Mo. 632; Dausman v. Rankin, 189 Mo. 677; Mowry v. Norman, 223 Mo. 470; Grundmann v. Wilde, 255 Mo. 109. (c) The instruction referred to in appellants' brief as "instruction 9, given at the request of the contestants" as to undue influence, was proper and has been approved in form by this court. Dausman v. Rankin, 189 Mo. 699. The word "must" was not used in instruction as was stated in appellants' brief. (5) The evidence was sufficient to sustain the verdict. Turner v. Anderson, 236 Mo. 523; Naylor v. McRuer, 248 Mo. 423; Gordon v. Burris, 153 Mo. 223, 141 Mo. 602; Mowry v. Norman, 223 Mo. 463; Thomas v. Thomas, 186 S.W. 996; Ballak v. Susanka, 182 Mo.App. 458; Lefever v. Stephenson, 193 S.W. 840; Grundmann v. Wilde, 225 Mo. 109.
RAGLAND, C. Brown and Small, CC., concur. Woodson, J., not sitting.
Arthur E. Spurr, a resident of the City of St. Louis, died January 29, 1916. On February 7, 1916, a writing purporting to be his last will and testament was admitted to probate by the Probate Court of the City of St. Louis. This proceeding, which is one to contest the validity of the will under the statute, was commenced March 1, 1917.
The evidence as preserved in the bill of exceptions covers more than 900 printed pages. We shall, therefore, merely outline the salient facts disclosed by it and add such matters of detail as seem necessary for an understanding of the questions presented for determination. [Thomas v. Thomas, 186 S.W. 993, 994.]
Arthur E. Spurr was never married. He left surviving him the following collateral heirs: His brothers, George and Charles, and his sister, Lucy Ann Estes, all of whom lived in St. Paul, Minnesota; his nephew and niece, Harry and Lydia Spurr, children of a deceased brother; and his nephew and nieces, Sam Jackson, Annie Burkhead and Lillian Chappel, children of a deceased sister. These nephews and nieces all lived in England. All of these heirs were named in the will as devisees or legatees. In addition to these, two others were named as legatees, Tom Spurr and William Jackson, children respectively of the deceased brother and the deceased sister. They were living at the time the will was written, but predeceased the testator. They were named as defendants in the petition and included in an order of publication, but before the trial an affidavit of one of the defendants was filed in which it was stated that both Tom Spurr and William Jackson died prior to the death of their uncle, Arthur E. Spurr. No proof was offered at any stage of the proceeding as to whether either left lineal descendants. Such lineal descendants, if any, were not made parties, nor notified of the proceeding in any way.
In addition to the collateral heirs just mentioned others were named in the will, either as beneficiaries, or as being specifically excluded from any participation in the testator's estate. These were Martha Stone, Fred, Henry Frank and Jane Spurr, children of George Spurr; Eddie Estes and Susan George, children of Lucy Ann Estes; John Spurr, Sarah Cleaveland, Harry Spurr, Eva Gallowav and Arthur Spurr, children of Charles Spurr; and Louis A. Morse, a business associate and the fiance of Jane Spurr. The testator's estate was valued at about $ 50.000. The will was executed December 17, 1912, and George Spurr, his daughter, Jane, and Morse are the principal beneficiaries. George and Jane Spurr were each given a legacy of $ 5,000 and they were made the residuary legatees. In addition, Jane was given a diamond ring and locket. Morse, in addition to specific legacies of a gold watch and 25 shares of stock in the Morse-Spurr Wool...
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