246 S.W. 218 | Mo. | 1922
Lead Opinion
Appeal from the Circuit Court of Saline County. Suit to contest the will of Davis P. Dennis, who died in said county on July 22, 1918. Said will was dated April 6, 1912, and admitted to probate August 9, 1918. Petition to contest filed by plaintiff, Ollie Gott, January 7, 1919.
The testator died seized of property in said county of the value of $45,000 or $50,000. By said will he bequeathed to his daughter, plaintiff Ollie Gott, who was his only child, the sum of $500, disposing of the rest of his property as follows: Rachael A. Dennis, a sister, $1000; Narcissa Goodloe, a sister, $250; Annie B. Igo, a niece, $250; said three bequests to be paid out of his personal estate. He next divided the balance of his personal property into fourteen equal shares, giving one share to each of his nieces and nephews, five of whom were the children of his sister, Mrs. Igo, deceased; six were the children of his sister, Narcissa Goodloe, and one was the only son and child of his brother, Austin Dennis, and two shares to the children of two deceased children of Mrs. Igo. He then directed that all of his real estate be sold and the proceeds equally divided among his following-named nephews and nieces, each *76 to receive one-tenth: Charles R. Igo, Sarah C. Swisher, Samuel S. Igo, Annie B. Igo, W. Austin Dennis, John H. Goodloe, David N. Goodloe, Higgins L. Goodloe, Sarah C. Collins and Arch L. Goodloe.
He appointed by his will his brother, John Austin Dennis, and Mr. Leonard D. Murrell, his executors, without bond. His will was witnessed by Charles Niemeier, J.T. Fisher and Jacob Van Dyke.
All the legatees and devisees of the testator, as well as the executors of his will, were made defendants in the contest proceedings. The ground of the contest stated by plaintiff, contestant, was want of mental capacity and undue influence over testator by defendants. The defendants filed answer denying the grounds of contest, propounded said will and prayed that same be adjudged to be the last will and testament of said Dennis.
At the trial, which was commenced September 29, 1919, after making formal proof of the probate thereof, proponents introduced Charles Niemeier and Jacob Van Dyke, who testified to the due signing and executing of the will by testator before them as witnesses, and that he was then and there of sound mind and memory. They also testified to the attestation of said will by J.T. Fisher, another witness to the will, but who was deceased at the time of trial.
Van Dyke also testified that he had lived in Marshall since 1867; became acquainted with Davis P. Dennis in 1878, when he rented land to Dennis. Saw him occasionally from that time on during his life time. Saw him on the day he made his will, April 6, 1912. "Mr. Dennis came into my office and asked me to write his will, and took me apart and said what he wanted written in his will, and I took it down in pencil and afterwards wrote the will. I don't think Mr. Dennis came in on that day and signed it. I think it was a different date. But I wrote that will from a memorandum that he gave me and he came in and read it over and signed it just as it was written. He said it was just the way he wanted *77 it." On cross-examination witness said: "Don't know that he discussed his property with me at that time. He spoke to me about having a daughter, yes, really, that was the first time I knew he had a daughter, when he spoke to me about writing his will. The first thing he said to me was, `I want to leave my daughter, Mrs. Gott — called her first name — $500.' That was the first item he gave me in writing the will. I recollect that very distinctly, because I did not know at that time that he really had a daughter. I don't believe he had any memoranda with him. Would not say as to that, do not know who came to town with him that day, he came there by himself as far as I know. The day he signed the will he was not in my office very long."
The testimony for plaintiff, the contestant, was thereupon introduced and tended to show that about 1867 the Dennis family moved from Kentucky and settled on a rented farm near Napton in Saline County, Missouri. The family consisted of the two brothers, Davis and Austin, both single, who were then probably grown young men, Davis having been a soldier in the Confederate Army. With them came and lived three maiden sisters, Rachael, Catherine and Jane, as well as the mother. They lived together there for many years, two of the sisters, Catherine and Jane, and the mother dying there before the trial. The brother, Austin, continued to live at the home place until he married — just when he married is not shown — and remained there after his marriage with his wife and child some time. From the time they moved to Missouri, the brothers were partners in farming. They were prosperous and acquired the ownership of the farm they had rented and lived on, as well as another eighty acres adjoining, and still another farm of some two hundred acres in the same neighborhood. The deeds to all the land were made in the joint names of both the brothers. Just when these farms were acquired does not appear in the evidence, but it was after 1871. It is inferable that it was some years before *78 1911 or 1912 when the brothers dissolved their partnership in farming and divided their land, Austin receiving the 200-acre farm, to which he and his wife and child had removed from the home place a few years before, and Davis P. receiving the home place of 155 acres and the eighty acres adjoining. Just what personal property, if any, they then divided, is not shown by the record, but it is shown that when he died Davis had a half interest in some notes aggregating $5000 or $6000, which were payable to himself and his brother Austin. Davis had no bank account in his own name, but the bank account was in the name of Dennis Brothers up to the time of his death. How much was in that account does not appear. There were also ten shares of bank stock in the name of Dennis Brothers. Austin was put on the stand by the plaintiff and he testified, in effect, that he and his brother were partners all their lives after "we got to attending to business at all, it was before I was twenty-one." About the same time, 1867, a married sister of Mr. Dennis, Mrs. Goodloe, and her family of some seven children, also moved from Kentucky and settled on a farm near her brother and mother in Saline County. Another sister, Mrs. Igo, had died in Kentucky, She, also, had seven children, and at an early day, probably about the time the Dennises came to Missouri, they also removed from Kentucky and settled near their uncle's place. All of the Dennises, the Igoes and Goodloes, with the exception of two or three of the latter, continued to live near each other, part of the Igoes and Goodloes living at times with the Dennises at the home place.
Shortly after the Dennises came to Missouri, a Mrs. Shelton and her family also removed from Kentucky and settled in Saline County, a mile or so from the Dennis home. Mrs. Shelton had a daughter by her first husband, Martha Senter. In 1871, Davis P. Dennis married Miss Senter. They were married at her mother's home, where they lived together for about one month, during which *79 time Mr. Dennis would each day go to his home and attend to his work upon his farm and return to his bride's home about sundown. At the expiration of the month Dennis ceased to live with his wife, and returned to his own home, where he remained the balance of his life. The plaintiff was born of this marriage, January 13, 1872. She and her mother continued to reside with Mrs. Shelton, the mother and grandmother, until about the year 1879, when Mrs. Dennis removed with her child to Carthage, Missouri, where they resided until some time after 1888, in which year in September, plaintiff, then being something over sixteen years of age, was married to Mr. Gott. She and her husband afterwards removed from Carthage and lived in St. Louis during the World's Fair, in 1904, and removed from Missouri to the State of Washington in 1907. Before 1879, when Mrs. Dennis moved to Carthage, the exact time does not appear, she obtained a divorce from Davis P. Dennis. There is some suggestion in the record that it was on the ground of abandonment, but she testified it was not upon that ground. As to the cause of the separation between Mr. and Mrs. Dennis, there was evidence that Mr. Dennis said at the time and often thereafter, that it was because his folks or family objected to his living with his wife and made him trouble on that account. The evidence shows that, notwithstanding he continued to live at his own home with his people, he frequently visited his wife and child, treated them with affection and furnished them with money for their support until they removed to Carthage, and that thereafter he wrote them affectionate letters and furnished them with money, contributing to their support, until his daughter was married in 1888.
In 1900, Mrs. Dennis married a Mr. Neelis, and they lived at Joplin until 1904, when he died. She then made her home with her daughter, Mrs. Gott and family, and removed in 1907 with them to the State of Washington. Plaintiff's mother testified that before she *80 moved to Carthage she and her husband had arranged to get married again, but he wanted her to wait, and gave as a reason that it was on account of his family troubles. That afterwards while at Carthage she got a letter from Mr. Dennis which she had lost, as to which she testifies as follows: "I got a letter that he would meet me and my daughter at a certain time Thanksgiving, and that we would be re-married again, and I answered his letter and our correspondence was broken off somehow; I never got any answer from him, so I did not know why he did not come. . . . I left [Saline County] and waited for him to come for years, don't know how many years. I waited from the time I got my divorce until 1900." That was the year she married Mr. Neelis. Plaintiff's mother also identified certain letters which she received from Mr. Dennis in 1888 and 1889, as being in his handwriting. They were as follows:
"Napton Mo. Sept. 19, '88. Matie — Yours of the 18th to hand I am always glad to hear from you and Ollie I had a letter from Olie since she was married I am negligent about writing wil answer Olies letter soon I was glad to hear from you I hope you are not mistaken about Olie marrying a good man I am pleased from what you say of him while I know you hate to give hir up I know you are a sensible woman and know she is better of if she is suited I hope she may always be happy She wrote me she would send me hir picture I would like to have it and hir husbands also wil write hir concerning it I hope you may hav a better and easier time and may never see our Child in need you deserve al the prase as I have done nothing for Olie while I owe Olie a Fathers care Mattie I always felt that I owed more to you than any one else hope you wil not hav to work so hard now and that you may soon be able to live with Olie and hav plenty without working in that old factory if Olie gets to house keeping I think I will go and see hir some time and would like to see you then if you are not living with hir I wil let you know when I will go to see hir dont tel hir good by as ever D P Dennis. *81
"Mattie Yours of late date come due to hand I also got a letter from you sometime since I writen you that I would go to se Olie some time I cant tel when I wil go I am very busy now and winter coming on wil let you know when I am coming Cant tel when at present dont tel Olie any thing about it as it would make hir anxious you hav not told me anything about Mr. Got what is he doing is he a farmer tel me what his ocupation is is his father living and what his Sircumstances is how how much family has he tel me al about Mr. Got go and see Olie and see how she is getting along I wil come some time if I can and see hir, As ever, D.P. Dennis, Napton Mo. Nov. 8, '88.
"Napton Mo. Nov. 21 '88 Mattie Yours of late date to hand would like to come to and see Olie Thanksgiving but my business is so I cant wil let you know when I am coming Cant tell when hope She is wel I must write to hir soon as Ever, D.P. Dennis.
"Napton Mo Jan 14 89 Mattie Yours the 16 Dec come due to hand was glad to hear you was wel and had been to se Olie and they was comfortably fixed for the winter I have not writen to Olie yet I hav forgot hir Street and Number wil write as soon as I hear from you no nuse that would interest yo Mrs Senter your brothers wife was burried last Monday She had Punmonia fever was sick but a few dayes hope to hear from you soon I am as ever D.P. Dennis."
After her marriage to Mr. Neelis, plaintiff's mother never had any further communication with her first husband.
In 1892, plaintiff, Mrs. Gott, visited her father and other relatives in Saline County. She had two or three uncles, probably her mother's brothers, living there. She testifies as to this visit:
"My father came to my uncle's, my uncle that lived near Napton, and took me home; he said he came to take me home, that he wanted me to get ready and go with him, and I did and I visited in his home. I think he *82 referred to the home being his and he said for me to call it my home, that it was my home and would be my home, but that is about all at that time. That was in the year 1892. I don't distinctly remember how long I visited there with my father, it could not have been more than two weeks I don't think, that is, not constantly; he took me to visit Mr. and Mrs. Swinney, they lived near Arrow Rock, and he said I will come for you Saturday, and so he would come. He did not seem to be satisfied to let me stay longer than a week at any time whenever I would go away, and then I went to my uncle's, but he did not take me that time, I went horseback and stayed a few days. I was back here just once to see my father, only made one visit. Well, I made other visits to Blackwater, but only the once to my father's house. When I visited my father there was living with him his brother, Austin, and his wife and child, and his sister Rachael and Sam Igo.
"Q. Now you may state how your Aunt Rachael and your Uncle Austin treated you on that visit. A. Well, I don't remember that my Uncle Austin said anything; he spoke to me on occasions, but he did not enter into conversation with me, and my Aunt Rachael only spoke of common occurrences of the day. Well, I cannot remember what they said, for it wasn't anything of importance, and it did not bear on my life formerly nor in the past, and they treated me, on the whole, cool, and they never sat with my father of evenings when he would be in the house, and of course I felt as though I was expected to stay with them, and when he would be in his room, which was downstairs in the living room, they would go off to their rooms, retire, and of course I did not feel like staying down there alone with him, and that is about the way they treated me. When I left, my father took me over to Blackwater because my trunk was there. On the way over to Blackwater he spoke of my mother, and spoke very affectionately of her, and spoke of her being a good woman, and he gave her all *83 the praise for what she had done in raising and taking care of me, and for me to look after her and see that she was cared for and that I should have his property at his death.
"Q. What did he say there about re-marrying her? A. He said that they were corresponding at the time of my marriage and that they intended, he intended, to re-marry her, but that on account of his family troubles at home he could not; he was influenced by them.
"Cross-examination: In 1892 was the first visit I made back there after I left. I was then living in St. Louis; went west in 1907. I said my aunt went off to her room and that I did not feel like staying down there with father. I had a room with my aunt, then I went upstairs where she was, it was a large house. I got there in September, 1892. My uncle's wife met me at Blackwater. I visited two or three families on that trip. I had three uncles here. My husband was not with me."
Plaintiff's mother further testified that while she still lived in Saline County and after she separated from her husband he always expressed great fondness for his daughter and said he expected to leave all his property to her when he died; that on one occasion during that time the two sisters, Rachael and Jane, told her that she and her husband should not live together; that Jane said "now that we have our brother back to help support us you cannot have him any more," and she said, "We will see to it that he will not leave any of his property to you or your child." Rachael said the same thing. Austin Dennis was not there and did not join in the conversation. Mr. Shelton, the half-brother of plaintiff's mother, who knew Mr. Dennis and his relations and who lived in the same neighborhood until after Mr. Dennis died, also testified to a number of conversations with Mr. Dennis to the effect that he was very fond of his child, and that Dennis told him at the time of the separation and a number of times thereafter, that the reason he could not live with his wife was on account of his family, they made trouble between him and his wife, and that *84 he said that he expected to provide for them in the future and see that they should never want for anything — he expected his daughter to inherit what he had left. He always spoke kindly with reference to his wife and child — always. The last conversation he had with Mr. Dennis about his sister was about a year before his death. There was other testimony to the effect that Mr. Dennis spoke of the plaintiff to others as his little girl, and that she "favored" him and that "he was proud of her." That was in 1892.
Being recalled, the plaintiff testified that after she moved to Washington she wrote letters to her father. That she was not notified of his death by any of defendants or anyone, and that she only ascertained that he was dead a week or so afterwards by reading a notice of his death in a newspaper published at Marshall for which she was a subscriber.
There was also testimony tending to prove that the deceased indulged in intoxicating liquor for many years before his death, but no one testified to seeing him under the influence of liquor except once at Jim Jones's sale, the time of which the witness was unable to fix. That he had several spells of pneumonia several years before his death, but that he was in good health about a year before his death until his last sickness, which lasted only three or four days. The age of Mr. Dennis is not exactly shown, but one witness who said he was a soldier in the Union Army, said that Mr. Dennis was a soldier in the Confederate Army and was three or four years older than he was, so that Mr. Dennis must have been well advanced in years, nearly, if not quite, eighty years old when he died, in 1918.
Austin Dennis, the brother, testified for plaintiff that he never spoke to his brother about what disposition he should make of his property by his will, and that he never knew he made a will until after his death.
Rachael Dennis, the sister, also was placed on the stand for the plaintiff, but she simply testified that she had always lived with her brother, and she was not asked *85 and she did not testify to anything relating to the making of his will. She did testify, however, that before his death her brother gave her a ten or twelve hundred-dollar automobile, and on objection of respondents' counsel she was not permitted to testify as to whether her brother gave her $4000 in Liberty Bonds, which plaintiff offered to prove that she had and claimed that her brother had given them to her. To this ruling plaintiff excepted.
Plaintiff also put a doctor on the stand who testified that from the tremulous character of his signature to the will in question he was of the opinion that the testator had the palsy when he signed his will, which indicated that his mental faculties were not absolutely normal, but to what degree he could not state, and said to counsel, "I leave that for you to say." He also said that a man who has a handwriting like that (referring to the signature to the will) could not have absolute control over his will power, but he would not say that any man that writes a tremulous hand is insane. Another witness for plaintiff said that Rachael Dennis told him after the will was probated that she was not satisfied with the $1000 bequeathed to her.
This was the substance of the evidence in the case. Thereupon the court gave a peremptory instruction to the jury to find for the defendants and that the will in question was the last will and testament of Davis P. Dennis. To this instruction plaintiff excepted. The verdict being rendered as directed and judgment entered thereon, plaintiff filed motion for new trial, which was denied and she duly appealed to this court.
I. It is contended that there was evidence of undue influence being exerted upon the testator by the defendants, especially by Austin Dennis and Rachael Dennis, the brother and sister of the testator, to practically disinherit the plaintiff, the testator's only child and heir by his will, in favorProof: Circumstantial of his collateral relatives, whichEvidence. included all the defendants. In such cases direct evidence of undue *86
influence is not necessary. It may be proved by circumstantial evidence. [Mowry v. Norman,
II. But the circumstance that the testator expressed the greatest affection for plaintiff and said he intended to leave his property to her, either before or after the execution of his will, standing alone, is not enough to show undueAffection: influence sufficient to set aside the will, but doesExpressed show her father's state of mind toward her and isIntention. competent with other evidence of undue influence on that issue. [Coldwell v. Coldwell, 228 S.W. l.c. 104; Canty v. Halpin,
III. It is also well settled that gross inequality in the distribution of the testator's bounty amongst those by law and nature entitled to share equally therein, or perhaps, even in disinheriting his only child in favor of collateral relatives, standing alone, would not raise a presumption ofInequality. undue influence sufficient to invalidate the will, but such unjust discrimination would tend to show undue influence when there are other facts and circumstances in the record also tending to show such influence. [Meier v. Buchter, 197 Mo. l.c. 87-90; Ray v. Walker, 240 S.W. l.c. 195-96.]
IV. In this case testator's affection for his daughter and gross discrimination against her do not stand alone. The testimony of the witness Shelton that the testator declared at the time of his separation from his wife that he "hated to do it," but did it on account of "his family making him trouble" may not be definite and circumstantial enough toFacts Proving make such declaration part of the res gestae,Undue Influence. still, under the above authorities, it is admissible as tending to show his mental attitude towards his bride *87 of a month and towards his family, to-wit — that of regret to part from her and subserviency to the will of his family. [Canty v. Halpin, and other cases, supra.] There are other circumstances bearing on the issue of undue influence. When he was married to plaintiff's mother the testator's three maiden sisters and mother all lived with him and were dependent on him for support, and while he and his brother, who also lived with him, were partners, the evidence shows that Davis P. Dennis was the head and front of the firm and family, the money-maker. So that for him to take unto himself a wife and children foreshadowed a great loss to his "family," to-wit, his mother and three maiden sisters and perhaps his brother also. The family therefore had a strong motive to object to and nullify his marriage and the consequences thereof to them so far as in them lay. That it was their influence that made him desert his bride at the very threshold of the altar, without fault on her part, and cleave to his mother, sisters and brother, and not to his wife, contrary to his own inclination and contrary to human and divine law, is the only reasonable explanation of his most unnatural and unlawful conduct.
In Meier v. Buchter, 197 Mo. l.c. 91, we said: "It is not necessary to cite authorities to sustain the proposition that undue influence need not be shown by direct proof, but may beestablished by proof of facts from which it may be rationallyinferred." Ever since Sarah unduly influenced Abraham (who also "hated to do it") to send Hagar and Ishmael into the wilderness with but a bottle of water and a loaf of bread, in order that Sarah's son, Isaac, might inherit all of Abraham's property and Ishmael should not receive his share, human nature has remained the same, and undue influence has been exercised by many other members of the family, as good as Sarah, upon fathers as strong-minded as Abraham, to cause them to make Ishmaelites of their children and deprive them of their inheritance. But such conduct has never been sanctioned by the law of Moses or *88
Missouri. We hold, therefore, that the circumstantial evidence in this case tends to show that the testator's "family" exercised such undue influence over him at the very outset of his married life as to separate him from his wife and child against his will, in order to deprive them of their lawful rights in his property. Undue influence being once shown to exist is presumed to continue. [Gay v. Gillilan,
But in this case its continuance is not left to presumption. There was much testimony to show that the same influence continued to dominate him throughout his life. He continued to reside with his family and be surrounded by the same influences until he died. He never married again and never again attempted to leave his family, but his affection and solicitude for his deserted wife and child always continued. This was not only shown by the testimony of the plaintiff and the mother and others, but also by his letters (with their phonetic spelling) of 1888 and 1889, which letters also show that his conscience pricked him. Mr. Shelton testified that as late as the year before his death the testator spoke with kindness of his former wife and his daughter. Both the wife and daughter testified that he said he wanted to re-marry his wife, but that his family objected and prevented it. This testimony as to conversations with the testator, of course, is not competent to show the truth of the declarations thus attributed to him, but is competent to show his mental state towards his wife and child and towards his family, and that it continued to remain one of affection for the former and subserviency to the latter. [Coldwell v. Coldwell, 228 S.W. 104, and other cases, supra.] It is true there are circumstances pointing the other way. His long absence from his wife and child and the scant communication between them for several years before and after they moved to Washington, is shown. But plaintiff testified she wrote letters to her father after she went to Washington to which she received no answers, which *89 may not have been her father's fault, because plaintiff's evidence shows her father spoke with kindness concerning her the year before he died. It is also true that Austin Dennis and Rachael Dennis were put on the stand by plaintiff, and Austin testified he never said anything to the testator about his will or knew he made a will until he died. But Rachael was silent on this subject, and both were silent as to how their brother happened to desert his wife and child and always live with them. If their silence is not evidence against them, it is not for them. Their testimony in no manner rebutted, as a matter of law, the testimony of plaintiff, her mother and others tending to show that such desertion in the first place and thereafter continued during the life of the testator was caused by the undue influence of the Dennis family, including defendants Austin and Rachael. We also think that an influence so powerful as to thus dominate the testator and cause him to leave his wife and child to whom he was greatly attached, out of his life, would cause him to leave his child (his wife having remarried) out of his will. At least, the jury might so infer.
Furthermore: All the flotsam and jetsam in the record tend to indicate undue influence as the only rational examination of the testator's most unnatural treatment of his wife and child. Apparently none of his family attended his wedding, none of them ever visited his wife, or invited her to visit them, and she was never at his house. None of his family, although they lived with him and were cared for and supported by him, ever visited his child or invited her to visit them or him at his house, although she lived only a mile or so away for the first six or seven years of her life. Apparently the testator himself never invited or took his child to his home, although he visited her often at her mother's home before they moved to Carthage, and treated her with great affection, took her upon his lap and kissed and caressed her as any loving father would do. It is also inferable that on such occasions this child also "ran to lisp her *90
sire's return and climb his knee, the envied kiss to share." His letters in evidence show that ten years after she moved to Carthage he planned to visit his daughter, but they contained no invitation for her to visit him at his home. As far as the evidence shows, the only time in her life she was at her father's house was in 1892, four years after her marriage, when he invited her to visit him, while she was in the neighborhood visiting an uncle. While there she was treated with coolness by Austin Dennis and his wife and Rachael Dennis. Her father, however, treated her with great kindness and affection. She also visited her uncle a time or two when she did not go to her father's house; whether she was invited or not does not appear. None of this large family of her father's folk ever visited her or ever invited her to visit them except Sam Igo, who called on her once for a few moments, while attending the World's Fair in 1904, at St. Louis, where plaintiff and her husband then resided. So this only child, who was fond of her father and whose father was fond and proud of her, was not even notified of his last sickness or death by any of the numerous members of her father's family, although all of them were beneficiaries of his will. So completely, the jury might infer had they crowded her out of her father's life and usurped her place that they no longer even considered her her father's child. Or, perchance, the short time she had to contest his will under our recent statutes — one year from its probate — admonished them to remain silent until the year had passed. The continued affection for so many years of the deserted child and mother for the husband and father who had banished them without fault on their part, even before his child was born, tends strongly to show that they knew their banishment was due to the influence of others which he was helpless to resist. Otherwise, they would have been consumed with hate and bitterness. Res ipsaloquitur. In case of an apparently grossly unjust and unnatural will like this it is the duty of the court to scan the record *91
carefully for all facts and circumstances that may hear on the issues. [Meier v. Buchter, 197 Mo. l.c. 88; Wendling v. Bowden,
V. We hold, therefore, there being evidence of undue influence in this case, besides the gross inequality and unnatural discrimination of the testator against his daughter in his will, that such unnatural discrimination itself becomes evidence of such undue influence, and the burden of proofUnnatural on the issue of undue influence was therebyDiscrimination: shifted from the contestant to the proponentsBurden of Proof. the same as where a confidential relation is shown. [Roberts v. Bartlett,
VI. We are not unmindful of the general rule that isolated verbal declarations of the testator said to have been made many years before his death are entitled to but little weight in such cases and frequently do not constitute substantial evidence. In this case, however, such declarations cover theVerbal whole period of the testator's long lifeDeclarations. subsequent to his marriage to within about a year before his death and constitute one continued and connected story as to his mental attitude towards his wife and child as well as towards his family. Furthermore, they are confirmed by his letters written about eighteen years after his marriage and separation from his wife and child and about twenty-five years before he made his will. The genuineness of these letters is not questioned. They show *92 he blamed himself for his failure to give a father's care to his child, hoped she was happy and would never be in need and praised his former wife for the manner in which she had cared for and raised her. Also, that he always felt that he owed more to his wife than any one else, who he hoped would not continue to have to work so hard and that she would soon be able to live with "Ollie" (who had just married Mr. Gott) and have plenty "without working in that old factory." He also promised in these letters to visit his wife and daughter, but cautioned his wife not to tell his daughter, as it would make her anxious. There is parole testimony that the testator's regard and solicitude for his child and former wife continued until at least one year before his death, five years after he made his will, when the witness Shelton testified he spoke with kindness regarding them. Under the circumstances in this case we hold that none of the declarations of the testator shown in evidence should be excluded from the jury because of their remoteness from the time the will was made. [Kuehn v. Ritter, 233 S.W. l.c. 7, and cases cited.]
VII. It is not sufficient to show that no overt acts of undue influence were exerted on the testator at the very time his will was made. If such undue influence was previously acquired and was operative at the time of making his will in the disposition of his property his will became thereby vitiated — all ofOvert which may be shown by facts and circumstances in evidence.Acts. Direct testimony is not necessary. [Mowry v. Norman, 204 Mo. l.c. 193, and cases cited.]
VIII. It may, however, be urged that there is no evidence that the nieces and nephews to whom he willed the greater part of his property had any hand in such evil influence over him. But we hold that even though they had no partBeneficiaries therein they are the beneficiaries thereof,of Evil Influence. and without which the will they claim under would not have been made. Where there is evidence tending to *93
prove, as we hold there is in this case, that the whole will was made under undue influence of the Dennis family operating upon the testator from the time of his marriage in 1871, until after his will was made, the whole will is infected with the virus of illegality, and must be set aside, although some, or even all, of the beneficiaries had no part in the act which produced the will. In the case of Teckenbrock v. McLaughlin, 209 Mo. l.c. 542, this court said: "A will that is shown by competent proof to be in fact the product of undue influence of one devisee or legatee, out of several, is as much void as if it was the product of the undue influence of all of them — is a bad will. The innocent may not take property as the result of a tainted devise or bequest merely because they are free of the vice. A gift fetched by an unchaste hand may well be held to be polluted." [Same ruling in Roberts v. Bartlett,
IX. We hold that the statements of Jane and Rachael Dennis to the plaintiff's mother after her separation from their brother to the effect that they would see to it that their brother did not live with her again and that neither she nor theStatements of plaintiff, her child, would ever get any of hisBeneficiaries. property, were inadmissible as against the nieces and nephews who were the principal beneficiaries in the will. [Teckenbrock v. McLaughlin, 209 Mo. l.c. 541-42; Schierbaum v. Schemme,
X. But we think in this case where the roots of the issues permeate the whole life of the testator after his marriage his declarations and acts up to the time of his death regarding his transactions with his family or any member thereof are admissible to show whether or not their previous relationActs After Will's and status towards each other continued toExecution. exist. Therefore, the evidence of and the facts *94 surrounding, the gift to Rachael Dennis of the Liberty Bonds should have been received, although it was after the will was made. It might tend to show why he did not change his will during the six years he lived after its execution.
XI. We are also of opinion that the "harsh and unnatural disposition by the will in question," with the harsh, unnatural and paradoxical treatment of his wife and child in his lifetime and his subjection to "his folks," which the evidence tended to show, "is a circumstance which tends to discredit the maker's testamentary capacity." [Schouler on Wills (3 Ed.) sec. 77; 1 Underhill on Wills, sec. 105; Page on Wills, sec. 385.] The above doctrine of the text-writers was quoted at length and with approval by this court in Meier v. Buchter, 197 Mo. l.c. 87 et seq., and in Ray v. Walker, 240 S.W. l.c. 195. The other facts bearing on the testator's physical condition shown in evidence were also competent circumstances on both the issue of undue influence and testamentary capacity.
The result is, the judgment of the lower court is reversed and the case remanded with directions to set aside the judgment herein and grant the plaintiff a new trial in accordance with the principles announced in our opinion. Brown and Ragland, CC., concur.
Addendum
The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All of the judges concur, except James T. Blair,J., in what is said of mental capacity in paragraph 11. *95
