Borchers v. Barckers

143 Mo. App. 72 | Mo. Ct. App. | 1909

GOODE, J.

(after stating the facts). — The assignment of the insurance policy to defendant is attacked in plaintiff’s petition on three grounds, lack of consent of the .insurance company, want of mental capacity in the deceased to execute any document at the time this one was executed, and procurement of the assignment through undue influence exercised over the mind of the deceased by defendant. Only the last of the three grounds was submitted to the jury in the instructions, as one on which, if the evidence supported it, they might return a verdict in favor of plaintiff. It will be perceived the main instruction for plaintiff did not leave it to the jury to say whether deceased was of sufficient mental capacity to execute the assignment, but taking for granted he was, directed the jury to find whether defendant, on any one for him, possessed and wielded an undue influence over deceased and thereby brought about the assignment without its being the individual act of deceased. There is some evidence in this record, though slight, from which an inference of want of mental capacity in the deceased to execute the assignment might be deduced. The act was akin to a testamentary one, and the rules regarding mental capacity and undue influence applicable to the case of a testator ought to be applied here. The two daughters and the son gave testimony tending to prove their father lacked mental capacity during his illness to know what he was doing, though when scrutinized, this testimony is not cogent. Then there is the fact of the mark instead of the signature of deceased being affixed to the policy, and Ur. Martin’s testimony which tended to prove the assignment was on the day deceased died and when he had lapsed into a semi-conscious condition. The doctor’s statement was so uncertain on this point'as to be of little weight; but is perhaps a circumstance on the issue of mental capacity. All the evidence on this issue sufficed to send the case to the jury, as it was tried by a jury, though it appears to be in the nature of a suit in equity. What would constitute capacity to make the assignment will be understood from declarations of the Supreme (Court, that legal competency to transact business, or rather to make a will, means intelligence sufficient to understand the act the testator is about to perform, the property he possesses, what disposition he is making of it, and the persons and objects of his bounty. [Sehr v. Lindemann, 153 Mo. 286, 288; Riley v. Sherwood, 144 Mo. 354, 363.]

We find no proof of the exercise of undue influence over the mind of deceased by defendant or some person for him, in order to induce the assignment of the policy to defendant. The members of the court have perused the evidence several times and consider it a blank as regards proof of this charge. The only other person than defendant who could have been meant as the one who might have influenced deceased unduly,-is Mr. Loevy, an attorney, but who acted in this matter as notary public, and simply took the acknowledgment of deceased. For aught shown he did literally nothing else. The only circumstance to prove any conversation had passed at any time between defendant, Nick Barckers, and his father during the latter’s last illness, about a transfer of the policy to defendant, is that the latter requested Mr. Loevy to go where deceased lay sick and take an acknowledgment of the assignment. If credible, witnesses are to be believed, deceased had expressed an intention before he fell ill to transfer this policy to defendant. A great deal is said about defendant’s being a “black sheep” and we think this charge was dwelt on at the trial more than it deserved. As said, there was some proof defendant of late years had been idle and maybe troublesome to his father; but there is other evidence to prove he helped carry on the dairy business and that the father was attached to him. A parent has the right to give property to a wayward child; and neither his other heirs nor a jury are entitled to select the object of his bounty and set aside a gift merely because they think it was not deserved. The questions for the triers of the fact were the mental competency or incompete-ncy of the deceased, and whether the act was his own or he was overcome, coerced or over-persuaded so as to make it the result of the influence of another over him, exercised to a degree that dominated his will. A reading of the cases wherein transactions were assailed as having been induced by undue influence, will show the Supreme Court of Missouri has taken a strong ground regarding the right of a person to dispose of his property by contract or will, and against the policy of setting transfers and wills aside on slight proof that they were brought about by such an influence. The weight of authority supports said court in its positions, which we venture to remark are wisely taken; for it is common for persons who are disappointed in their expectations of patrimony, to attempt to cast suspicion on bona fide transactions. For one thing, there is a dearth of evidence in the present record to show defendant had any special influence, due or undue, over the mind of deceased. The tendency of the evidence for plaintiff was to prove deceased was out of patience with defendant and unlikely to listen to him. For influence to be exerted it must, of course, exist. But it must not only exist, but there must be proof that it was exerted, and effectively. [Brinkman v. Rueggesick, 71 Mo. 553; Riley v. Sherwood, 144 Mo. 354, 366; Crowson v. Crowson, 172 Mo. 691, 703.] The exertion of it and its effect in inducing a will or contract, may be shown by circumstances and need not be directly proved. But there must be some kind of evidence, either circumstantial or direct, tending to prove those facts, and not merely to engender a suspicion of their existence, or show opportunity for the exercise Of improper influence without showing it actually was exercised. [Tegenbrock v. McLaughlin, 209 Mo. 533, 551; Doherty v. Gilmore, 136 Mo. 414, 419.] We are not unmindful of the fact in this connection of there being evidence which would tend to show a weakened mental condition in deceased which, though not amounting to legal incapacity to transact business, would render him the more susceptible to improper influences. But his weakness of mind, if such there was, does not, ipso facto, prove he was unduly influenced. If it did, many wills which are perfectly valid, would be set aside, for having been executed when the testators were languishing in their last illnesses. What we hold is there must be circumstances proved which point to the successful employment of undue influence or positive testimony to that effect, and there was neither in the present case. [Riley v. Sherwood, 144 Mo. 354, 366; Sehr v. Lindemann, 153 Mo. 276, 289.] We hold, too, the burden was on plaintiff to establish the assignment was thus procured, as it is in most cases where undue influence in bringing about a transaction is alleged. [Tibbe v. Kamp, 154 Mo. 545, 580.] If deceased was of sufficient mental capacity to participate in a transaction, then tested by the principles declared in the foregoing decisions of the Supreme Court, and other decisions of the same court referred to in the cases cited, the present record is barren of evidence to prove the assignment of the policy of insurance to defendant was other than the voluntary, spontaneous and unsolicited act of the deceased, prompted by paternal affection for defendant and a de- ' sire to make some provision for him. Similar doctrines to those set forth have been declared by the Supreme Court in cases involving dispositions of property by transfers inter vivos. [McKissock v. Groom, 148 Mo. 459; Chadwell v. Reed, 198 Mo. 351.]

The judgment is reversed and the cause remanded.

Nortoni, J., concurs; Reynolds, P. J., concurs in reversing the judgment but not in remanding the cause.