Turner v. Butler

• Decision Date: 06 December 1913
• Citation: 161 S.W. 745,253 Mo. 202
• Parties: TURNER et al. v. BUTLER et al.
• Court: Missouri Supreme Court

161 S.W. 745

253 Mo. 202

TURNER et al. v. BUTLER et al.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

1. TRIAL (§ 267)—REQUEST FOR INSTRUCTION —MODIFICATION BY COURT.

Where the court modified an instruction requested by defendant, and gave it as modified, it was not a compliance with the request, and was error if the requested instruction was proper.

2. WILLS (§ 52)—TESTAMENTARY CAPACITY— BURDEN OF PROOF.

The burden is upon the proponent of a will to establish testamentary capacity of the testator by a preponderance of all the evidence.

3. WILLS (§ 329) — ACTIONS TO DETERMINE VALIDITY—MISLEADING INSTRUCTIONS.

While, in a will contest, the contestants were entitled to an instruction that the burden was upon the proponents to prove testamentary capacity, yet, where the proponents depended upon the witnesses offered by contestants to prove such capacity, it was not error to refuse contestants' request to charge that, unless proponents had shown testamentary capacity by a preponderance of the evidence, the verdict should be against the will; since such an instruction might mislead the jury into believing that it was incumbent on the proponents to show such facts by their own witnesses.

4. WILLS (§ 163)—PROBATE AND ESTABLISHMENT —PRESUMPTION—VOLUNTARY ACT.

When the proponents have shown that a will was executed with all the prescribed formalities while the testator was of sound mind, it will then be presumed that it was his free and voluntary act, and the burden is upon a contestant to show the contrary.

5. WILLS (§§ 158, 166)—UNDUE INFLUENCE— SUFFICIENCY OF EVIDENCE.

The law does not denounce the influence which a son-in-law may have over his father-in-law, but only the improper use of it, and that such influence is shown to exist, and, in addition, that testator gave a large part of his estate to the daughter, the wife of the son-in-law, is not sufficient to establish undue influence.

6. WILLS (§§ 47, 156)—TESTAMENTARY CAPACITY.

That testator, at the time of executing his will, was old and greatly weakened in mind and body did not justify the court in confining him more closely to conventional methods in distribution, though it should make the court more careful in its scrutiny of the influences which surrounded him.

7. WILLS (§ 324)—ESTABLISHMENT—SUFFICIENCY OF EVIDENCE—UNDUE INFLUENCE.

Evidence, in a will contest, held not sufficient to take to the jury the question whether testator's son-in-law exercised undue influence over testator as to the execution of the will, though the son-in-law was testator's confidential adviser, and testator devised a large part of his estate to his daughter, the wife of the son-in-law.

8. APPEAL AND ERROR (§ 260)—RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW— EXCEPTIONS—NECESSITY.

The appellate court will not review the rulings of the trial court upon the admissibility of evidence, where no exceptions were taken thereto in the lower court.

9. WILLS (§ 53)—ADMISSIBILITY OF EVIDENCE —CONDITION OF MIND.

Where the issue was as to the testamentary capacity of testator at the time he executed his will, the court did not err in sustaining objections to questions asked an attorney, with whom testator had advised shortly before executing his will, as to the attorney's reasons for refusing to write the will at that time, since it was the condition of testator's mind and not the attorney's which was in issue.

Appeal from Circuit Court, Boone County; N. D. Thurmond, Judge.

Will contest by Eugenia Turner and husband, contestants, against Mary Butler and others, defendants and proponents. Judgment for defendants establishing the will, and proponents appeal. Affirmed.

This is a statutory contest of the will of John Butler, late of Boone County, Mo., by plaintiff, his granddaughter, against his widow, four children, Loutitia Phelan, Mary Woods, Martin Butler, and Lizzie Vantine, a grandson, John Butler, only heir of a deceased son, William Butler, and Butler and Thornton Stewart, grandsons, who with plaintiff are the three heirs of a deceased daughter, Annie Butler Stewart. The executors are also made parties. The grounds of the contest are fraud, undue influence, alteration of the instrument after signature, and unsoundness of mind.

At the close of all the evidence, the court withdrew the issue of undue influence from the jury and refused all instructions offered by plaintiffs on this issue. The case was submitted on the sole issue of unsoundness of mind.

The will in question was made and signed December 8, 1905, when the testator was about 80 years of age. Although he had been a man of considerable vigor and business ability, he had for some time been suffering from a general breaking down incident to old age, and had been practically confined to his house for some months previous to the making of the will. The evidence tended substantially to show that at that time he was not of sound and disposing mind, although some of the numerous witnesses introduced by contestants testified that they considered him all right in that respect.

The undue influence relied on is particularly charged in the petition to have been exerted by defendant Loutitia Phelan and her husband, Vincent D. Phelan, over the diseased and weakened mind and will of Butler, while he was sick and under the influence of intoxicating liquors and drugs administered by them, as well as other artifices, without which he would not have signed and published the alleged will. As a matter of fact, the Phelans lived on Mr. Butler's land about two miles from his residence. Mr. Phelan was the only child who lived in Boone county, and she and her husband were frequently at the Butler home; and, while Mr. Phelan did not wholly superintend the operations on the testator's farms, his advice was sought by the hands and his suggestions were followed in the absence of Mr. Butler. The latter does not seem to have known much about the technical description of lands. He seems to have been helpless in the presence of a map or survey, and depended entirely on Phelan, who seems to have been expert in such matters, and said that he could describe the entire real estate holdings of Mr. Butler without a map. Mr. Carter, Mr. Butler's attorney, when writing the will in question, had difficulty in describing the land, and availed himself of the services of Mr. Phelan who was at the Butler home at the time, as was Mrs. Butler, who is shown by the evidence to have taken an active part in Mr. Butler's affairs. Mr. Phelan had said to both his wife's sister-in-law and her son that he had been the business manager and legal adviser of Butler for two years before his death, although there is nothing in the evidence to indicate that he was a lawyer, or had any special training in that direction.

In the latter part of February or the first part of March, 1906, Mr. Stephen March received word from Mr. Butler through some neighbors to come to write a will. He found Mr. Butler in bed or in a reclining chair, and said that he wanted Mr. March to rewrite a will. Mrs. Butler got the old will, the one in controversy here, and handed it to Mr. March. Mr. Phelan was not there. He got his map for Mr. March to look over and pick out certain pieces of land in which he wanted to make a change. March told Mr. Butler that he was not accustomed to that kind of work, and would rather have some one to assist him because he might get it wrong. Mr. Butler proposed Mr. W. W. Brundage, who did not come, and March suggested Mr. Phelan, Butler said, "He is the very man," and they telephoned for him and he came. In the meantime, Mr. Butler asked Mr. March to read the will until he got to "Marty" and then stop. By that time Mr. Phelan was there. At Mr. Butler's direction, Mr. March copied the will as far as the beginning of the devise to Martin E. Butler, and had finished when Mr. Phelan came. He then told him the trouble, and Phelan said, "I can almost locate that land without looking over the map"; that it was more trouble than he thought it would be. Mr. March after relating these facts in his testimony proceeded: "Uncle Johnnie said, `I want all in No. 17 west of the creek, Lick Fork creek,' I think he says, `to go to Marty.'" "Q. Had you put that in the will you were writing? A. No, sir. Mr. Phelan just made the remark, `Uncle Johnnie, don't you know, Uncle, that there is ten acres that does not lie due west of Lick Fork creek, there is ten acres that is west of Perche?' Q. He had said he wanted all west of Lick Fork Creek? A. Yes, sir, in the 17th. Q. And Mr. Phelan asked him if he didn't know —. A. That there was ten acres— Q. Lying west of the Perche? A. That didn't lie west of the Perche. Q. What did Mr. Butler say to that? A. It just appeared to kind of unnerve him. He got all out of sorts about it. Q. What did he say? He just said, `Squire, you just burn up what you have written there, and I will get Mr. Tom Carter back here and have him to fix this up.' Q. What else did he add when he told you to burn the papers? A. I put them in the stove. And, after reflecting a little while, he says: `No, that wouldn't do. I may pass away before Tom Carter gets back here, and you just let me rest two or three days and I will call you again and we will fix it up.' Q. Did he send for you any more? A. Not after that."

The map admitted in evidence shows that Perche creek, for the most of the way, forms the west boundary of section 17, but is deflected eastwardly and comes back to the line in such a way as to leave about ten acres of the section west of the creek and bounded on the west by the middle third of the section line. Lick Fork creek enters the northwest quarter of the section from the north, and runs in a southwesterly direction through that quarter, emptying into Perche creek, leaving a considerable tract of land in the northwest corner of 17 lying east of Perche creek and west of Lick Fork. One would judge from the map that there are 40...