Wendling v. Bowden

• Decision Date: 06 December 1913
• Parties: IDA WENDLING et al. v. RICHARD BOWDEN et al., Appellants
• Court: Missouri Supreme Court

161 S.W. 774

252 Mo. 647

IDA WENDLING et al. v. RICHARD BOWDEN et al., Appellants

Supreme Court of Missouri, First Division

December 6, 1913

Appeal from Clark Circuit Court. -- Hon. Charles D. Stewart, Judge.

Affirmed.

Wm. L Berkheimer and T. L. Montgomery for appellants.

(1) While statutory will contests are in a sense sui generis they are on the same footing as ordinary lawsuits and the trial judge may direct a verdict where there is no substantial evidence to sustain a certain issue, and may direct a verdict one way or the other based upon the existence of uncontradicted testimony on an issue or on the absence of proof on such issue. Teckenbrock v McLaughlin, 209 Mo. 539; McFaddin v. Catron, 138 Mo. 213; Bradford v. Beasson, 207 Mo. 228. (2) Neither courts nor juries can make the wills for men; they ought to be careful in unmaking them. Lorts v. Wash, 175 Mo. 502; Hughes v. Rader, 183 Mo. 708; Conner v. Skaggs, 213 Mo. 349; Berberet v. Berberet, 131 Mo. 399. (3) There is no substantial direct or circumstantial evidence in the record showing that Richard Bowden, by undue influence at the time it was written, procured the execution of the instrument read in evidence, and the court should have given the instruction marked "A" asked by proponents, at the close of all the evidence, directing the jury to find for proponents. Teckenbrock v. McLaughlin, 209 Mo. 533; Weber v. Strobel, 236 Mo. 649; Turner v. Anderson, 236 Mo. 534; Shierbaum v. Schemme, 157 Mo. 1; Gibson v. Gibson, 24 Mo. 227; 13 Ency. Ev., 268; Winn v. Grier, 217 Mo. 459; Fulton v. Freeland, 219 Mo. 519; Hayes v. Hayes, 242 Mo. 168; Dausman v. Rankin, 189 Mo. 703; Giboney v. Foster, 230 Mo. 136; Carl v. Gabel, 120 Mo. 283; Sayre v. Trustees, 192 Mo. 95; Rule v. Maupin, 84 Mo. 589; Martin v. Bowdern, 158 Mo. 392; Cash v. Lusk, 142 Mo. 641; Wood v. Carpenter, 166 Mo. 477; Waddington v. Busby, 45 N.J.Eq. 173, 14 Am. St. Rep. 710. (4) There is no substantial evidence in the record authorizing the submission to the jury on the part of contestants, that there was such confidential and fiduciary relationship existing between the testator and Richard Bowden, that cast the burden of proof upon the latter to establish there was no undue influence exercised at the time of the execution of the will, and instruction marked "B" should have been given as asked by proponents. Kischman v. Scott, 166 Mo. 226; Hamburger v. Rinkel, 164 Mo. 406; Campbell v. Carlisle, 162 Mo. 647; Norton v. Paxton, 110 Mo. 467; Goodman v. Griffith, 238 Mo. 716; Tibbe v. Kamp, 154 Mo. 575; West v. West, 144 Mo. 134; Martin v. Bowdern, 158 Mo. 392; Seibert v. Hatcher, 205 Mo. 104; Berberet v. Berberet, 131 Mo. 410. (5) Instruction numbered two given for contestants is in the nature of a comment upon the testimony of one witness and is an unjust reflection upon the testimony of the proponent in this case, and not applicable to all the witnesses. The jury is asked to take into consideration the character of the witnesses, when there was no evidence of the character of any one witness in evidence. The giving of the same was prejudicial and reversible error. There was no evidence introduced to authorize the giving of this instruction. State v. Gartrell, 171 Mo. 519; State v. Auslinger, 171 Mo. 600; State v. Hopper, 71 Mo. 430.

Smoot & Cooley, John A. Whiteside and W. T. Rutherford for respondents.

(1) The statute in relation to will contests is in pari materia with the statutes governing ordinary trials, and if there is any testimony, either upon the question of mental incapacity or upon the question of undue influence, the case should be submitted to the jury. State ex rel. v. Guinotte, 156 Mo. 520; Young v. Ridenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314; Harrison v Lakenan, 189 Mo. 609; Mowry v. Norman, 204 Mo. 173; Mowry v. Norman, 223 Mo. 463; Moore v. McNulty, 164 Mo. 119; Roberts v. Bartlett, 190 Mo. 680; Harris v. Hays, 53 Mo. 90; Sehr v. Lindemann, 153 Mo. 288; Turner v. Anderson, 236 Mo. 542. (2) If the person who sustains a confidential relationship to the testator at the time of the execution of the will is to get any pecuniary benefit, either directly or indirectly, under the will, a presumption of undue influence will be indulged. Barkley v. Cem. Assn., 153 Mo. 315; Lins v. Lenhardt, 127 Mo. 271. (3) A discrepancy between a fixed purpose of the testator, expressed in his declared intentions, and the provisions of the will, which are favorable to those in close relation to him at the time of its execution, and who have opportunity to unduly influence him, casts upon the beneficiary the burden of showing that the will was not the product of undue influence. 40 Cyc. 1154; Carroll v. Hause, 48 N.J.Eq. 269; Matter of Blair, 16 Daly (N.Y.), 540; Lee v. Dill, 11 Abb. Pr. (N.Y.) 214; McCartney v. Bone, 33 Ala. 601; Children's Aid Soc. v. Loveridge, 70 N.Y. 387; Swenarton v. Hancock, 22 N.Y. 38; McLaughlin v. McDevitt, 63 N.Y. 213; Whitelaw v. Sims, 90 Va. 588. (4) Undue influence may be shown by the relation of the parties, the mental condition of the person whose act is in question, the character of the transaction and all relative facts and circumstances. Dingman v. Romine, 141 Mo. 466; Bradford v. Blossom, 190 Mo. 139; Myers v. Hauger, 98 Mo. 438; Roberts v. Bartlett, 190 Mo. 701; Meier v. Buchter, 197 Mo. 91; Doherty v. Gilmore, 136 Mo. 414; King v. Gilson, 191 Mo. 327; Allore v. Jewell, 94 U.S. 506; Griffith v. Godey, 113 U.S. 89. (5) That the testator had the right to dispose of his estate as he saw fit is undoubted, but when the will is unreasonable the clearest evidence is required that it was the deliberate offspring of his own unbiased mind. Harvey v. Sullen, 46 Mo. 153; Meier v. Buchter, 197 Mo. 86; Schouler on Wills (3 Ed.), sec. 77; Underhill on Wills, sec. 105; Page on Wills, sec. 385; Aylward v. Briggs, 145 Mo. 604; Redfield on Wills (4 Ed.), pp. 516-537; Gay v. Gillilan, 92 Mo. 264; Maddox v. Maddox, 114 Mo. 49; McFadin v. Catron, 120 Mo. 271; Catholic University v. O'Brien, 181 Mo. 68; Hughes v. Rader, 183 Mo. 710; Dausman v. Rankin, 189 Mo. 707; Bradford v. Blossom, 190 Mo. 139; Roberts v. Bartlett, 190 Mo. 700; King v. Gilson, 191 Mo. 327; England v. Fawbush, 204 Ill. 384; In re Budlong, 126 N.Y. 423. (6) Where the testamentary capacity of the testator, and undue influence exercised upon him, are in issue, it becomes material to know what were his previous purposes, intentions and state of mind, and statements made by him at, before and after making the will in question, and the contents and provisions of former wills made, if any, are competent evidence for these purposes. Thompson v. Ish, 99 Mo. 160; Gibson v. Gibson, 24 Mo. 227; Rule v. Maupin, 84 Mo. 587. (7) In determining whether or not a will was the result of undue influence it is proper to consider the mental and physical condition of the testator, and the will itself is competent evidence on that issue, and may be read to the jury. The question should be determined in the light of all the circumstances. Myers v. Haugher, 98 Mo. 433; Young v. Ridenbaugh, 67 Mo. 586; Crowson v. Crowson, 172 Mo. 691; Roberts v. Blossom, 190 Mo. 701. (8) Undue influence need not be shown by direct proof, but may be inferred from facts and circumstances. Doherty v. Gilmore, 136 Mo. 414; Dingman v. Romine, 141 Mo. 466; Bradford v. Blossom, 190 Mo. 139; Woerner, Law of Administration, sec. 32; Garvin v. Williams, 44 Mo. 465; Carl v. Gabel, 120 Mo. 297; Dausman v. Rankin, 189 Mo. 677; Roberts v. Bartlett, 190 Mo. 701; Myers v. Hauger, 98 Mo. 438; Gay v. Gillilan, 92 Mo. 263; Maddox v. Maddox, 114 Mo. 35. (9) When the will is unreasonable in its provisions and inconsistent with the duties of the testator with reference to his property and family, this of itself will impose on those claiming under the instrument the necessity of giving some reasonable explanation of the unnatural provisions of the will. Gay v. Gillilan, 92 Mo. 264; Meier v. Buchter, 197 Mo. 90; McFadin v. Catron, 120 Mo. 271. (10) Proponent Richard Bowden sustained a confidential relation to testator in this: (a) Richard Bowden was named executor of the will without bond. Bradford v. Blossom, 190 Mo. 143; Roberts v. Bartlett, 190 Mo. 700; Mowry v. Norman, 204 Mo. 191. (b) He was made trustee without bond of the $ 2000 fund for Mrs. Wendling. See authorities above. (c) Testator was very old, physically infirm from rheumatism, living with and dependent upon proponent, chief beneficiary in his will, for care, nursing, advice, and the management of his property interests, who did in fact manage all his business for him. Mowry v. Norman, 204 Mo. 191; Bradford v. Blossom, 190 Mo. 139; Roberts v. Bartlett, 190 Mo. 700; Dausman v. Rankin, 189 Mo. 706. (11) Defendant Richard Bowden, sustaining a confidential relationship to the testator, and being practically the only beneficiary under the will, a presumption of undue influence therefore arises, which shifts the burden of proof upon proponent, Richard Bowden. Lins v. Lenhardt, 127 Mo. 271; Barkley v. Cem. Assn., 153 Mo. 315; Campbell v. Carlisle, 162 Mo. 644; Hegney v. Head, 126 Mo. 627; Roberts v. Bartlett, 190 Mo. 143; Dausman v. Rankin, 189 Mo. 708; Maddox v. Maddox, 114 Mo. 40; Marx v. McGlynn, 88 N.Y. 357; Bradford v. Blossom, 207 Mo. 230. (12) It was the province of the jury, under all the facts and circumstances in evidence to pass upon the question of undue influence -- as to whether the presumption of undue influence was removed by the evidence on the part of appellant. King v. Gilson, 191 Mo. 327; Mowry v. Norman, 204 Mo. 173, 223 Mo. 463; Gannon v. Gas Light Co., 145 Mo. 502. (13) The Supreme Court will not weigh the evidence in a law case. Harrison v. Lakeman, 189 Mo. 609; Mowry v. Norman, 223 Mo. 463; Buford v. Gruber, 223 Mo....