West v. West

• Citation: 144 Mo. 119,46 S.W. 139
• Parties: WEST et al. v. WEST et al.
• Decision Date: 17 May 1898
• Court: United States State Supreme Court of Missouri

46 S.W. 139

144 Mo. 119

WEST et al. v. WEST et al.

Supreme Court of Missouri, Division No. 2.

May 17, 1898.

PLEADING — REPLY — WILLS — CONTEST — REVOCATION — EVIDENCE — INSTRUCTIONS — UNDUE INFLUENCE.

1. It is not error to strike from a reply matter which is, in effect, a repetition of averments in the petition.

2. In a contest of a will, a demurrer will not lie to evidence showing that the testator was of vigorous intellect at the time of making it, where it is not shown that he had not complied with every statutory requirement in its execution.

3. Witness had drawn three or more wills for the testator, and was of the impression that he had drawn one since the date of the will in suit, but was not positive, and could not remember whether it was properly executed, who the witnesses were, or what was in it. Held not to be sufficient to establish the revocation of a prior will, under Rev. St. 1889, §§ 8870, 8871, requiring all wills to be attested by two or more witnesses, and a will revoking a former will to be in writing.

4. It is not error to refuse instructions, where the issues were fully presented in other instructions.

5. Where a will is attacked only on the grounds of undue influence and of a subsequent valid will, and the evidence fails to establish any subsequent will, it is proper to charge that the only question is that of undue influence.

6. A charge, in an action to contest a will, that the question was one of the undue influence only, is not erroneous, by reason of the fiduciary relationship between testator and beneficiary being also involved, since the fiduciary relationship is included in the question of undue influence.

7. The testator, 85 years of age, had made advances to each of his children, except proponent, the youngest son, who lived with him, and was kind and attentive to him. Considering the advances, the amount left to his son was not unreasonable. Father and son were interested in fast horses, and the father always deferred to the son's judgment in regard to them, but managed his own financial affairs, and was of strong mind, and not easily influenced. Held, that the jury were justified in finding against the claim of undue influence.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Action by F. M. West and others against William E. West and others. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

D. H. McIntyre, I. W. Boulware, S. W. Bickley, and John Barker, for appellants. W. W. Fry and R. D. Rodgers, for respondents.

GANTT, P. J.

This is a statutory contest of the last will and testament of William C. West, late of Audrain county. This will was duly probated December 31, 1894; and this suit was commenced, and made returnable to the June term, 1895, of the circuit court of Audrain county. The plaintiffs are the widow and certain of the children and grandchildren of said decedent, and the defendants are his son William E. West and his daughter Mrs. Mills and her husband. The petition sets forth the death of William C. West in December, 1894; the various children and grandchildren; their relation to William C. West; the probating of the paper writing of date February 21, 1887, — and charges that William E. West falsely pretended that said instrument was the last will of said William C. West; that William E. West controlled and managed the business affairs of his father, and exercised an undue influence over him, by threats, intimidation, and coercion, and thus was enabled to direct and control his father in the execution of said will to such an extent that it was not the will of said William C. West; that, if William C. West did sign the said paper writing, his signature was procured by fraud, coercion, and undue influence of said son; that it was not executed and attested as required by law. Plaintiffs state further that the deceased had executed another and different will than the one in controversy, long since February 21, 1887, the date of the writing in controversy. They then prayed that an issue of devisavit vel non be made up and tried. The answer avers the death of William C. West in Mexico, Mo., on the ____ day of December, 1894. It then avers that on February 21, 1887, William C. West was of sound mind, and over the age of 21 years, and on that day made and executed his last will and testament, in the words and figures following:

"I William C. West, of the county of Audrain and state of Missouri, do make, publish, and declare this my last will and testament, hereby revoking and annulling all former wills by me made: Item 1st. I give and bequeath to my wife, Sallie West, in lieu of all dower and homestead in my real estate, and all dower in my personal property, and in lieu of all other demands or claims whatsoever against my estate, all my household and kitchen furniture, beds, bedding, and everything contained in and about my dwelling house that may be termed household and kitchen furniture, except as hereinafter provided, — also, my buggy and harness, — to have, hold, use, and enjoy during her natural life; and at her death it is my wish that all of said personal property be divided equally between my sons Wm. E. West, Francis M. West, and my daughter Belle Mills. I also give, devise, and bequeath unto her, my said wife, Sallie West, the following described real estate, situated in the county of Audrain, state of Missouri, to wit: Lot one (1) in block four in the County addition to the town of Mexico, Missouri, to have and to hold, use and enjoy, the same for and during her natural life only. And I further give, devise, and bequeath to my said wife, Sallie West, to be paid to her by my executor as collected by him, one-fourth of all rent arising and coming from my six store buildings situated on the east side of Washington street (beginning at the corner of Promenade and Washington streets, and running north), in the city of Mexico, Missouri, to be paid to her during her natural life only. Item 2. I hereby devise, give, and bequeath to my daughter Sallie Ann Kabrich the sum of one dollar, in addition to advancements heretofore made to her and to her husband. Also, to John A. West the sum of one dollar; I having heretofore made my advancements to him. Also, to my granddaughter May Snider I give the sum of one dollar. I have heretofore made advancements to her and her mother, Nancy Snider, during her lifetime. And also to my grandchildren Ada West Sheeley, Charles West, and Ida West, I give each the sum of one dollar; I having heretofore made advancements to them and their father, James H. West, during his lifetime. Item 3. I hereby give, devise, and bequeath to my son Francis M. West the sum of eighteen hundred and seventy-five dollars. And I also give and bequeath to my daughter Belle Mills the sum of two thousand dollars. And I further give, devise, and bequeath to my sons William E. West, Francis M. West, and my daughter Belle Mills lot No. 1 in block 4 in the County addition to the town of Mexico, county of Audrain, state of Missouri, subject to a life estate in my said wife, Sallie West, as hereinbefore provided for in Item No. one of this my will; they, the said William E. West, Francis M. West, and Belle Mills, to have, hold, and enjoy the same on equal parts to themselves forever, subject only to the life estate of my said wife, Sallie West, as above provided. Item 4. I hereby give, devise, and bequeath to my son William E. West all the rest, residue, and remainder of my estate, both real and personal estate, of whatever kind, and wheresoever situated, of which I may die seised and possessed, including any money, notes, or other property of any kind I may have, own, or possess at my death, subject to the payments of my just debts, and the payment of the above-mentioned special legacies. Reposing confidence in the honesty and integrity of my son Wm. E. West, I hereby appoint him executor of this, my last will and testament, and direct that he may so act and settle up my estate without giving any bond as such executor. Witness my hand in witness whereof this 21st day of February, A. D. 1887. William C. West."

"The foregoing instrument was at the date thereof signed and declared by the said above-named W. C. West to be his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. W. S. Mosby, W. W. Fry, Witnesses."

Defendants averred that this was his last will, and denied each and every allegation and statement in plaintiffs petition not specifically admitted in their answer to be true, and prayed judgment establishing said will. Plaintiffs replied, and denied all the new matter in the answer; admitted that the answer set forth a true copy of the alleged will admitted to probate. They then made this allegation: "They say that said will is not the will of said W. C. West; that said pretended will was procured and signed by said W. C. West under threats, force, duress, and under persuasion exercised over him by the chief and principal beneficiary thereunder, to wit, his son Wm. E. West, at whose instance and by whose directions said will was signed. They further say: That at the time said pretended will was made, that said Wm. West was made the manager of all the business matters of said W. C. West; controlled, conducted, and looked to the same; was the close, confidential, and fiduciary agent of said W. C. West; had complete control over him at the time said pretended will was made, and for many years prior thereto. That, when said pretended will was made, said W. C. West was about ninety years of age; was weak and infirm in body and mind; wholly subject to the directions and control of said W. E. West. That pretended will is not the will of said W. C. West. That the allegations in plaintiffs' petition are true. Now, having fully replied, they ask for judgment as prayed for in their petition."...