Thomas v. Stump

• Decision Date: 31 January 1876
• Citation: 62 Mo. 275
• Parties: JOHN W. THOMAS et al., Appellants, v. SARAH E. STUMP, et al., Respondents.
• Court: Missouri Supreme Court

62 Mo. 275

JOHN W. THOMAS et al., Appellants,

v.SARAH E. STUMP, et al., Respondents.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

T. G. C. Davis, with McElhinney & Musser, for appellants, cited Redf. Wills, p. 228; Hess' Appeal, 43 Penn. St., 73; Harrison vs. Rowan, 3 Wash. Ct. Ct., 585; Harvey vs. Sullens, 46 Mo., 147; Harrel vs. Harrel, 1 DuVall [Ky.,] 203.

D. T. Jewett, for Respondents, cited Harvey vs. Heirs of Sullens, 56 Mo., 372.NAPTON, Judge, delivered the opinion of the court.

This is a suit, under our statute, brought by the heirs of a deceased daughter of John Stump by his first wife, against an infant daughter of said Stump by his second wife, to have the will of said Stump, which had been previously admitted to probate, set aside and declared null. The son by the first wife, David M. Stump, was also made a party defendant, but as he was acting as guardian of the infant defendant, and was interested in having the will set aside, a guardian ad litem of the infant daughter was appointed. The suit was instituted upwards of four years after the will had been admitted to probate. The grounds upon which the probate of the will is contested are, that the deceased was very old and infirm in body and mind, and, by misrepresentations and undue influence, and threats of his wife, was induced to make the will. The testator died about two years after the execution of the will, and his wife died a few weeks after the testator, leaving this defendant, the daughter, an infant eight or nine years old.

After a trial of several days, in which as the record abundantly shows the greatest latitude was given the contestants, much of the evidence being incompetent and still more totally irrelevant, and after instructions exceedingly favorable to the contestants, the jury found a verdict establishing the will.

The formal execution of the will is not disputed. The testator called on four of his neighbors to meet him at his house, produced the paper in question to them, said it was his will, and had been drawn up for him by a lawyer in St. Louis, signed it in the presence of these neighbors, and requested their attestation as witnesses. Three of them did so attest it in his presence and by his directions. The testator was then about seventy-five years old, and lived two years thereafter. He was apparently sound in body and mind, unless his age is to be regarded as establishing the contrary. The only neighbor called on and present who did not attest the will was named in it as executor--and he was a son of one of the attesting witnesses.

These witnesses all concur that David Stump was a rather hale old man; that he had a farm of three or four hundred acres; had been engaged in buying and feeding stock; that he was illiterate but managed his affairs with prudence and success, and at the time of executing his will was in good health and to all appearances as sound in mind, as well as body, as he ever had been.

To overthrow this prima facie case, the contestants relied on certain facts, some of which they proved and offered evidence to prove the others; first, that David Stump, at the time of his marriage with the mother of defendant, was sixty-eight years old, and his wife only eighteen; second, that previous to his marriage there were rumors or reports, in the neighborhood of his wife's residence, prejudicial to her chastity; third, that at the time of his marriage and up to the date of his will he was infirm in body, and that his wife exercised an undue influence over him; fourth, that he had...