219 Mo. 494 | Mo. | 1909
Action by plaintiff, the son of William J. Fnlton, deceased, contesting the will of deceased made in March, 1889. By said will it was provided (1) expenses of funeral to he paid out of personal property, (2) that executor sell so much of testator’s property as may he required to pay debts and pay same, and (3) bequest of one dollar “and no more” to the plaintiff.
The remaining four paragraphs or items of this will read:
“Item 4th. I hereby devise and bequeath to my beloved wife, Elzie, all the residue of my estate, both real and personal.
“Item 5th. In case my said wife shall die before, or with me, I herein devise the residue of my estate to my stepdaughter, Lizzie McPike, in estate tail to her and the heir or heirs of her body forever.
“Item 6th. In case my stepdaughter dies without issue I devise the said .residue of my estate, one-half to Pauline Engleman, of Parkville, Missouri, and one-half to Mary Scott, of Pueblo, Col.
*501 “Item 7. I hereby appoint Joseph L. Freeland to execute this, my last will and testament.”
G-ronnds of contest, as alleged, were (1) that said will was executed “by and through the fraud, deception, persuasion and undue influence of the defendant Elzie Fulton and Joseph L. Freeland, Lizzie McPike, and J. P. Tucker, or one or all of them, and of other persons related to said Elzie Fulton or friendly to her, and conspiring and conniving with her to procure said instrument, whose names are to this plaintiff unknown, and for that reason cannot be here stated;” (2) testamentary incapacity, thus stated: “That long prior to the signing and publishing of said instrument the mind of said William J. Fulton had become diseased and subject to a morbid delusion and hallucination amounting to a permanent and fixed insanity incapable of being removed and eradicated from the mind of said testator, which said delusion was in substance that the plaintiff herein and said' testator’s divorced wife had entered into a conspiracy for the purpose of inflicting bodily • injuries upon said testator, and to wreck said testator financially; that said delusion was without reason and unfounded in any fact or substance whatever, but purely a delusion and insane conception of said testator induced, created and perpetuated fraudulently and wrongfully by the defendant Elzie Fulton and her friends until his death, February 9, 1902, for the purpose and with the intention of procuring from said testator the will sought in this proceeding to be vacated and annulled;” and (3) a general charge (in which is pleaded the alleged evidence) of a fraudulent scheme upon the part of Elzie Fulton, then Elzie McPike, a widow, beginning in 1876, when testa-tator was married to another woman, by which the said Elzie by illicit relations with deceased sought to gain undue influence over him, separate him and his wife, and then marry him, and procure the will in question securing to her and her relations the property and es
By answer the defendants admitted the execution 'and probate of the will, the death of testator February 9, 1902, the qualification of defendant Freeland as executor, and denied all other allegations. Further answering they averred that William J. Fulton was a citizen of Platte county when said will was made and published, over the age of twenty-one years and of sound mind, and that the said will, a copy of which was attached to the answer, was the last will and testament of William J. Fulton, and prayed that the same might be so declared.
Reply, general denial of the new matter in the answer.
As above stated, plaintiff is a son of deceased by a first wife. Defendant, Elzie Fulton, is the second wife and widow of deceased. Lizzie McPike is the daughter of Elzie Fulton by her first husband, William McPike, and Pauline Engleman and Mary Scott are sisters of Elzie Fulton.
The history of this cause as depicted by the versatile pen of plaintiff’s learned counsel lacks only stage settings for a modern play. More or less of it will be required for a proper understanding of the points in dispute, and especially on the point made that the trial court erred in excluding certain testimony offered. The' suit was brought in Platte county, but on change of venue was tried in Holt county.
In 1852, William J. Fulton was married at Adrain, New York, to Mary J. Hadley, then a girl of fourteen years and an orphan. The young wife had inherited seventeen acres of land and some money from her father. The young couple remained there, on this place, until 1863, when they removed to Wyandotte, Kansas. Prior to this removal the plaintiff in this case was born of this marriage. In 1876, the Fultons removed to Parkville. Upon reaching the West, Wil
Another contention of plaintiff is that through the influence of Mrs. McPike, Fulton was led to believe that a conspiracy had been formed by and between his then wife, Mary, and her nephew, William Hadley, and others to kill Pulton and get his property. That Fulton believed there was such a conspiracy is amply shown by his acts and the testimony of his neighbors and friends, but as to Mrs. McPike’s connection therewith the tendered evidence is not convine-
Following the thread of events it appears that on September 3, 1880, William J. Fulton sued his wife, Mary J. Fulton, for divorce. In his petition he charged that they had not lived together as man and wife since the year 1870, although they both lived in the same house and he supported her. That he first suspected his wife of infidelity to him in 1868, and from that time until the filing of the petition she had been guilty of adultery with divers persons upon divers occasions, some of which persons and dates were named. That she used profane language toward plaintiff and in the winter of 1879-80 attempted to hill him wit i a pistol. There was also the following charge:
“That in the spring of 1880, she and William O. Hadley and divers other persons, formed a conspiracy to murder the plaintiff and get possession of his property, and would have succeeded in all probability, but for the accidental and timely discovery of their hellish plot. ’ ’
To this petition, Mary J. filed an answer ánd cross-bill. In the cross-bill she complains of inhuman treatment at the hands of defendant from almost the date of their marriage. That he compelled her, when fourteen and a half years of age, to do all house work for himself, his father, two sisters, brother and brother-in law, and to cut all necessary fire wood. That he haU from that time on throughout their married life, been guilty of every kind of tyrannical action so as to make her life unbearable and unendurable; that she was sick and suffering and he neglected and abandoned her and gave her no care, devotion or affection; that whilst living in the same house with him in Wyandotte, Kansas, and Parkville, Missouri, she was wholly neglected and cruelly treated by plaintiff; that during such time'he refused, neglected and failed to pay any personal attention to plaintiff and failed and refused to procure
The cross-hill then proceeds to charge that he maliciously caused her to he arrested and imprisoned upon the charge of a conspiracy to murder him, and that the same was done to illegally assist him in this, his proceeding for divorce. The cross-hill also charges William J. Fulton with having been guilty of adultery with a number of women, naming them, and among them were Elzie McPike and Josie Fulton, the wife.of his son, and M. Augusta Hadley, the wife of Mary J.’s brother.
March 31, 1881, the following decree was.entered in that case:
“This day the above entitled cause coming on for final hearing upon the petition of plaintiff, the answer and cross-hill of defendant and plaintiff’s reply thereto ; and the court having heard all the evidence and arguments of counsel on both sides, finds that the plaintiff has by the proof sustained the charges of adultery specified in his petition against the defendant, and that the plaintiff is the innocent and injured party; the court, therefore, orders, adjudges and decrees that he be and is hereby divorced from the defendant; and, it not being necessary to pass upon the charge of conspiracy charged in plaintiff’s petition, no finding is made upon that issue.
“The court further finds that none of the charges contained in defendant’s cross-bill are sustained by the proof, and said cross-bill is dismissed. It is adjudged and ordered that the plaintiff pay the costs of this suit.”
• It appears that prior to August 20, 1880, Mary J. Fulton had been East with her relatives and friends and when she came back was arrested with her nephew,
All the foregoing records were introduced by the plaintiff in the present suit. The defendants then introduced record evidence showing that a change of venue was taken from Justice David Mitchell and the cause transferred to Justice Adam Woods, where upon a trial had the defendants were found guilty and punished by a fine of $200 and six months in the county] jail. From this an appeal appears to have been taken, and the plaintiff in the case at bar introduced a record entry of the circuit court of Platte county of date April 1, 1881, showing that there was a nolle pros, entered by the prosecuting attorney. On November 2, 1881, William J. Fulton was married to Elzie McPike, and lived with her thence forward to the day of his death.
Returning to the question of conspiracy, the plaintiff, upon the first trial of this case, introduced as a witness John Fulton, a brother of William J. Fulton. At the trial from which this appeal arises John Fulton was dead, hut the stenographer’s notes of his previous evidence were read to the-court and jury in this case. In substance, this testimony is that William J. wrote to him in the East about his troubles and the fears he entertained as to foul play upon the part of his wife, Mary J., and her relatives, the Hadleys, and asked him to investigate what was being done. This witness made an examination and in his testimony in chief said that there was nothing in the conspiracy. He admitted that he had written to William J. several letters, and was at a little station waiting to go home when a train from the West came in and to his surprise William J. got off. That he stayed with William J. several days
Osterhout, August 16th., 1880.
My Dear Brother:
Inclosed find a letter from my man at Tidaout. I received a letter from M. H. M. to-day. He tells me that Mary left Hornelis-ville the 12th, one day later than she expected. So that you will see that Will H. must have left the 11th. They were probably both to leave together and I presume that they are both in Kansas City now. Morg. tells me in a letter received from him, that Polly is writing Mary’s history in full since she has been in Adrain, to send to you,' As soon as Í hear.from Strong again I will let you know. The lady he speaks of is Mary. I expected she would stop there, as I wrote him to that effect. All I can say is, “don’t be caught asleep, nor get faint-hearted.”
Your ever true brother,
JOHN Fulton.
Tidaout, August 13th, 1880.
Mr. J. Fulton,
Dear Sir: Your letter of the 11th inst. to hand. The lady in question had not got here. He has given up going with the boat and his brother have taken the machinery out of it. Mr. Hadley left here two days ago. Which way I could not say, and I can’t find anybody that knows. He may be going out of town for a few days, if so, I will let you know when he returns. But I think he has gone for good, as he has been making great calculations on going West with that boat and that failed him, so he had nothing to stay here for.
Yours truly,
C. B. Strong.
Being further pressed, after háving seen the letter, he admitted that upon receiving his brother’s letter of date Jnly 5, he had written to Strong to keep a watch on Mrs. Mary J. Fulton and the Hadleys, as he lived in their neighborhood. He admitted that M. E. M.' mentioned in his letter was M. B. Miller, a brother-in-law of his; that Will H. was William Hadley who was afterwards tried and convicted at Barry in Platte county for a conspiracy to murder William J.
In the admitted evidence the foregoing is all there is to explain the idea that William J. entertained about there being a boat constructed in the East to come West for the purpose of carrying out a conspiracy. What was contained in the other letters from John is only apparent by inference.
In the excluded deposition of Mrs. Susannah Spencer is found the fact that the Mrs. Hadley mentioned in the letters, supra, wrote a letter to William J. Fulton, which he showed to the witness, and in this the alleged details of the plot were given. The witness says that William J. was nervous and pale when he showed her the letter. It also appears that this Mrs. Hadley came West and was here at the divorce trial. This evidence was offered by plaintiff and excluded as aforesaid.
There is some evidence as to Fulton’s mental condition in 1880 about the time of this conspiracy matter. A fair sample of this evidence is that of the witness Frederick Kahn, who testified that Mr. Fulton thought
“Q. Prom your own knowledge and acquaintance with Mr. Fulton and your talks with him about this conspiracy, and the circumstances surrounding that entire transaction, I will ask you whether-you considered Mr. Fulton’s mind exactly right on that subject? A. Well, I really don’t know; if I were to judge myself, I would say that he was not right on that subject — he had his mind concentrated on that one point. . . Fulton, I thought was a very successful business man. I knew him in 1889, he was a strong-minded, intelligent man at that time. Have had talks and business dealings with him before and after 1889. My opinion is formed from these transactions.
“Q. Now, I understood you, Mr. Kahn, that Mr. Fulton was just as sane on this conspiracy question as you are on any subject on which you firmly fix up your mind, is that correct? A. Well, I couldn’t say as to that whether his mind was all right on that or not.
“Q. You don’t say that it wasn’t, do you? A. Well, I don’t know that I can.
“Q. And you testified, I believe, that a great many people in this community also believed like Mr. Fulton- — that a conspiracy to kill him did exist? A. Yes, he believed it, and the people believed it.
‘ ‘ Q. And a man by the name of Hadley — who was connected with this conspiracy — was seen loitering mysteriously around Parkville. A. There was a man here by the name of Hadley around Parkville, a good deal, they never called him Captain Arlington.
“Q. If Jim’s name was connected in any way with that conspiracy you never heard of it? A. I don’t remember of it being.
“Q. If Jim was connected with it you didn’t hear it from Mr. Fulton or any body else? A. No.”
Of this class of testimony this is as strong as any appearing in the record for the plaintiff.- That is to
Plaintiff’s evidence further' tended to prove that his father was friendly towards him after his second marriage, although the wife was not; that they met at different places and talked; that his father helped him some financially; that the second wife said Jim could not have anything, if she could help it; that on several occasions she objected to his father talking to plaintiff; that Elzi'e Pulton was a high-strung woman and disposed to have her own way, and in some instances had gotten the husband to change his purpose, but the great bulk of plaintiff’s testimony shows that, whilst the wife ran the house, Mr. Fulton ran his business affairs; that the home relations were not pleasant after the second marriage; that Mr. Fulton was a kindly, forgiving man and would yield a point rather than have trouble; that Lizzie McPike often vexed him.
The printed abstract contains- three hundred and seventy pages of the evidence, much of which has been condensed, and in places it appears that some portions of a witness’s testimony have been left out entirely.
• doing to the date of the execution of the will in 1889, all the witnesses both for plaintiff and defendant say that deceased was a man of large business affairs; that he owned and managed large farms, sawmills, banks, and for three terms was mayor of Parkville. They all practically agree that he was a man of kindly disposition and would yield a point rather than have trouble with an employee or others. They practically all agree that he was in sound health, both physically and mentally, in 1889. There is some evidence that even in after years he spoke of this conspiracy to kill him, and clung to the belief that it was true.
Besides showing on cross-examination of the plaintiff’s witnesses (as in the instance of Kahn), the defendant, by a mass of testimony coming from citizens of high standing and many of them of Statewide repu
Further for the defendant, it is shown that Fulton at times mentioned his will to others and expressed satisfaction as to its terms. It appears that he at first thought of making Park College a beneficiary in the event of his «wife’s death and his step-daughter’s death, and so informed the scrivener, who penciled a will to that effect, hut several months later he requested Mr. McRuer, the scrivener, to call at his house and complete his will, and then told him that Mrs. Engleman had been as a sister to him, and told him to make her and Mrs. Scott beneficiaries in the event of the death of the wife and step-daughter. In each draft of the will the portion to plaintiff was the same. To the scrivener he said that James, the plaintiff, had been unfaithful to him, and in a way the record so speaks. From one or more witnesses it appears that at the time of the divorce proceedings James had threatened that they would pursue him until they broke him up. From much in the record the conduct of James was humiliating to his father. He was unable to get him to attend school. James persisted in acting as a kind of fakir at picnics and public gatherings. He espoused the cause of his mother at the divorce proceeding (a commendable act, generally speaking), but one which might afford the father ample reason to make other disposition of his property. He shot a negro at Parkville and occasioned.the old gentleman much ¿nxiety and expense. After the second marriage of his father, he and his mother lingered around the house after dark, much to the discomfort of the father. A subsequent lawsuit by the first wife followed over some property, and James again espoused her cause. Whether true or not, the father believed that James at one time in Kansas
From the evidence, no one was present when Mr. Fulton dictated the terms of his will, except the scrivener, McRuer. After it was written he°took it up town the next morning or shortly thereafter, and meeting J. P. Tucker and L. A. Lathy on the sidewalk in front of Mr. Tucker’s printing office, asked them to go upstairs to Tucker’s office, and when there he signed the will and they attested it as witnesses thereto. No one was present except the three, unless some workman in the rear end of the newspaper office.
In general outline such is the case. At the close of all the evidence the court directed a verdict for defendants establishing the will. Such further reference to the evidence as may be required will be noted in the disposition of the points made.
I. An orderly method of disposing of the points raised by plaintiff on this appeal, is to take the question of the exclusion of certain testimony first, and this we will do. It is urged that the court erred in excluding that great mass of testimony tending to show illicit relations between deceased and Mrs. McPike from 1876 up to the date of their marriage. Was there error here? We think not. The divorce of the deceased .from the first wife was in April, 1881, the marriage to the second wife in «October, 1881, and the will was drawn in March, 1889. These occurrences afe too remote.
In 1 Underhill on Wills, p. 213, it is said: “Evidence of illicit relations existing between the parties before their intermarriage, particularly if either of the parties were married at the time, is always relevant, though never controlling or conclusive of undue in
To a like effect in Gardner on Wills, p. 203, it is said: “Evidence is frequently inadmissible by reason of remoteness, such as the relations between testator and his wife eight or nine years before the will was made, or an estrangement between the testator and his wife, caused by the proponent, sixteen years prior to the making of the will, or a camping trip made by the testator and proponent nine years previous to the execution of the will, during which testator introduced proponent as his wife, though he had a wife then living.”
The same question has been up in this State in the case of Ketchum v. Stearns, 8 Mo. App. l. c. 69. In that case, which in facts is very much like this case, it is said:
“The plaintiffs sought to raise a presumption of undue influence affecting the execution of the will, by proofs of the relations existing between the testator and his second wife before their marriage, which was about eleven years before the making of the will; by testimony showing the dependent condition of the disinherited children; by showing that the testator had had difficulties with his first wife, and had separated from her, and that some of the disinherited children had taken sides with their father in those controversies; by showing that the relations between the testator and his disinherited children were friendly and affectionate about the time of the making of the will; by .showing that some of the first wife’s children had assisted the testator in accumulating property; and by proving some conversation of the testator, in the same year in which the will was made, concerning his intended disposition*514 of Ms property. There was also an offer to prove that one of the testator’s daughters by his first wife had been obliged to leave her father’s house, by reason of his second wife’s request or influence to that effect. All the offers of testimony upon these matters were, upon defendants’ objections, refused by the court, and these refusals are assigned for error.
“We can discover no ground of admissibility for any of this proposed testimony. The plaintiffs have undertaken to prove that the paper purporting to be the last will and testament of their ancestor whs the product of an undue influence exercised upon him by Sarah M. Ketchum. ‘Undue influence is that which compels a testator to do that which is against his will, through fear, through the desire of peace, or some coercive power which he is unable to resist, and but for the exercise of which the will would not have been made as it was.’ [Pierce v. Pierce, 3 Cent. L. J. 226.] The testator was married to his second wife in 1855. His will was executed in 1866, and he died in 1877. Here is a period of more than twenty years, at some time during which these incidents of remote bearing, or none at all, are supposed to have indicated that the testator, in the hour when his will was written and signed, was acting under the coercive power above described, and that this coercive power was in fact held over him by Sarah M. Ketchum. Cause ánd effect are here far too widely separated for the purposes of fair investigation. All or any of the facts tendered might or might not coexist with a total absence of any such undue influence. They prove, or tend to prove, upon the question at issue, absolutely nothing. Their only effect, if introduced in evidence, might be, in the hands of ingenious counsel, to play upon the passions or prejudices of a jury, and give them an apparent excuse for thwarting the unkind discrimination of a father against some of his children.’’
In Pierce v. Pierce, 38 Mich. l. c. 419, Judge Campbell says: “We think there is very little testimony in the record on this subject which should have been admitted at all. The domestic scandals of many years ago could have no legitimate tendency to prove any modern state of things, and could only serve to burden the case with irrelevant and discreditable details that might and evidently did prejudice the jury, but which had no tendency whatever to show influence in 1871. The law does not confine the power of making wills to persons of blameless character, nor does it disqualify all others from being legatees. And whatever may have been the relations of the testator and his second wife eighteen or nineteen years before his death, and whatever may have been the circumstances of their marriage, it cannot be permissible to draw inferences from them concerning a condition of things many years thereafter, which if existing at all could be proved without difficulty as an existing fact and not a possible contingency. ’ ’
In a California case, In re Flint, 100 Cal. l. c. 398, wherein the will was executed nine years after the meretricious acts, the court said: “Conceding indiscretions to have been committed by these parties at this time, such evidence wholly failed to show any undue influence at a time many years after, for in the interim the parties were married, and she had been a lawful wife for years. The foregoing views are fully supported in Webber v. Sullivan, 58 Iowa 260; Batchelder v. Batchelder, 139 Mass. 1; Pierce v. Pierce, 38 Mich. 418.”
To a like effect is the opinion of the Supreme Court of Colorado in the ease of In Re Shell’s Estate, 28 Colo. l. c. 170. In that case the illicit relations were in 1874 and 1875, the second marriage in 1880, and the
And so too in Batchelder v. Batchelder, 139 Mass. l. c. 2, that court thus states the rule: “The testimony offered to show what the relations between the testator and his wife were eight or nine years before the will was made relates to a period so remote that the court could properly exclude it.”
We are of opinion that this evidence was too remote to be of probative force in this cause. Another question pertaining to this class of testimony will be discussed under the question of undue influence.
II. We will take the question of mental incapacity next, although the statement of facts leaves but little room for discussion. The only thing which is urged under the proof is that the testator in 1880, nine years prior to the execution ,of the will, had an insane delusion that he was to be injured by his first wife and her.relatives and further that he entertained a delusion as to the attitude of the plaintiff toward him. No pre-tence is made that testator was not of sound and disposing mind at the execution of the will in .question
Now, as to these alleged delusions. There is no such thing as a delusion founded upon facts. It is a mental conception in the absence of facts. If the idea entertained has for a basis anything substantial it is not a delusion. There may be a misjudgment of facts or there may be an accentuated opinion founded upon insufficient facts, but not a delusion, rising to the dignity of a mental aberration. As to the conspiracy of his former wife and her relatives and friends forming a plot in the East to do him bodily injury, it cannot be said that this was a delusion in face of the facts. His brother had written him sufficient facts to remove his views from the realm of delusions. In addition his brother had written him that Mrs. Bradley was writing the history of his wife at Adrain, New York, which she would mail him. He did get such letter and grew nervous and turned pallid as he handed it to the servant to read. He had them arrested and upon trial before a jury they .were convicted. Upon appeal being taken it is true the case was dismissed by the prosecuting officer, ljut the officer testified in this case, and says that it was dismissed without the consent of deceased and that deceased was angry when he found that the case had been dismissed. The prosecuting attorney, explaining his action, said that there were one hundred and fifty witnesses in the case from Parkville, most of whom were favorable to the views entertained by testator, but that he concluded that inasmuch as Had-ley, one of the defendants, had already been confined in jail for six months, he had been sufficiently punished,
The rule as to what constitutes an insane delusion is thus expressed by 1 Underhill on Wills, sec. 94, p. 126: “Thus the fact that'the testator believed that his relatives have ill-treated him, or that they are inimical to him and have conspired to defraud him, and for that reason leaves his property to strangers, does not constitute an insane delusion, unless it appears that his belief was wholly without any basis whatever, and th t the testator obstinately persisted in it against all argument which may have been employed to dissuade him. If there are any facts, however little evidential force they may possess, upon which the testator may in reason have based his belief, it will not be an insane delusion, though on a consideration of the facts themselves his belief may seem illogical and foundationless to the court; for a will, it is obvious, is not to be overturned merely because the testator has not reasoned correctly.”
See also Stull v. Stull (Neb.), 96 N. W. l. c. 202; Bauchens v. Davis, 229 Ill. l. c. 561; Scott v. Scott, 212 Ill. 597.
In the Stull case, supra, the court says: “No belief that has any evidence for its basis, is in law an insane delusion. ’ ’
In Sayre v. Trustees of Princeton University, 192 Mo. l. c. 126, this court quotes with approval the above language from the Stull case.
Under the facts in this case there was no sufficient evidence to establish, an insane delusion, and with this eliminated there is absolutely nothing upon which to submit the issue of mental incapacity to. the jury. The peremptory instruction in so far as this branch of the case was concerned was properly given.
Ill, (a) Going then to the question of undue influence, how stands the case? No attempt is made to show undue influence upon the part of any of the beneficiaries, save and except the wife. The fact that the wife is the chief beneficiary in the husband’s will raises no presumption of undue influence. The law is concisely stated by Mr. Underhill thus: “The fact that a man bequeaths his estate to his wife, excluding his children, his father or other relations, is absolutely immaterial upon the question of undue influence. The silent influence of affection and respect, augmented by the tender and kindly attentions of a faithful spouse, cannot be regarded as in any sense undue. Nor will the fact the wife by solicitation, or even by urgent importunity, procures for herself all her husband’s property, or a larger share than he devises to others, raise a presumption of law that the husband’s will was pro
(b) Referring again to the excluded evidence, and conceding its admissibility, still there would be no case for tbe plaintiff. Tbe evidence is all in the record' by way of depositions and if we held it relevant and proper, we could consider it as admitted and pass upon
The weight of authority seems to be to the effect that even where a person of sound and disposing mind makes a will in favor of a mistress or to one with whom his relations have been meretricious-, yet there is no presumption of undue influence. In the notes to the case of In Re Hess’s Will, 31 Am. St. Rep. l. c. 677, the learned annotator, after reviewing the cases, says: “As long as the absolute power of testamentary disposition is conceded, and the owner of property is allowed to dispose of it to whomsoever he pleases, and for such reasons as to him shall seem adequate, his right to make a bequest to one with whom his relations have been meretricious must be. admitted, even though it be further conceded that the bequest was made, because of these relations. Nor can the existence of those relations create a presumption of undue influence, and impose upon the beneficiary the burden of disproving-the exercise of such influence.”
•In the very recent case of Weston v. Hanson, 212 Mo. 273, a case where after a divorce from his wife in the trial of which the children took the part of the mother, the testator made a will to his mistress, this court, after reviewing the case, said:
“These cases are all answered by the evidence in the case at bar, which does not show that the defendant was present at the time of the execution of the will. Nor does it show that she ever knew that it was about to be executed, or that she had any conversation with the testator in regard to it before its execution; but it does show that the testator was a man of intelli*522 gence, a shrewd business man, who had occupied prominent positions, and that he was a man of fine physique and of strong will power; that he went alone to his attorney and employed him to prepare his will, gave him full and explicit directions as to how he wished to dispose of his property, also the names and places of residence of each of his children, and was at that time in possession of all his mental faculties; and it is only in the absence of some one or more of these conditions that the authorities which we have referred to, except Dean v. Negley, 41 Pa. St. 312, and McClure v. McClure, 86 Tenn. 173, have held that a presumption of undue influence arises from meretricious relations existing between the donor and the donee. Dean’s case has been overruled, or its holding modified, by subsequent cases in the same court, and this court and the St. Louis Court of Appeals declined to follow it. [Sunderland v. Hood, 13 Mo. App. 232.] Besides, such an inference should not be drawn from the evidence relating to the relations which existed between the testator and the devisee in the case at bar, in the absence of proof that Mary Hanson ‘exerted her influence in the procuration of the will.’ [Arnault v. Arnault, 52 N. J. Eq. 801; Dickie v. Carter, 42 Ill. 376].
“The presumption is in favor of the theory that the will expresses the purpose and intention of the^testator. ‘Without proof that a mistress influenced a testator directly in procuring a will in her favor, it cannot be inferred from their relations that she secured an influence over him which she would naturally and improperly exert to advance her interest.’ [Middleton’s Case, 68 N. J. Eq. 584; Monroe v. Barclay, 17 Ohio St. 317; Matter of Mondorf, 110 N. Y. 456.] The laAV as announced in Middleton’s case, supra, is, as we understand it, the law of this State as declared in Sunderland v. Hood, 13 Mo. App. 232, and Sunderland v. Hood, 84 Mo. 293, and to which we adhere.”
Full research of this voluminous record and of the questions presented leads us to the conclusion that the trial court committed no error in directing the verdict for defendants. The judgment is affirmed.
