Gott v. Dennis

MISSOURI, OP COURT SUPREME v. Gott DENNIS Appellant, A. RACHAEL GOTT, OLLIE al. et One, 1922. December Division By Proof Circumstantial Evidence. Proof: INFLUENCE: -UNDUE 1. by influence a tes- of undue exercise direct evidence only practically child in favor disinherited whose will tator kindred, brother, is not neces- other collateral sister of sary, undue influence and exercise of case existence but in such by from may proved and facts circumstantial be inferred. be Expressed Ex- Affection for Child. -: -: Intention and 2. practical- only child, pressed for his who testator affection kindred, ly of his collateral in favor his will disinherited her, expressed ex- whether intention to leave an alone, will, standing pressed execution of his after the setting undue influence authorize not establish sufficient do her, will, his state of mind but do show towards aside along competent, and are to considered with other evi- are circumstances, on the issue of undue influence. dence and Inequality. inequality -: —-: Gross Gross the dis- 3. bounty amongst those law and of testator’s nature tribution therein, equally standing alone, will not entitled to share raise a presumption- of undue influence sufficient invalidate the even, perhaps, practically where the will disinherits his unjust child in kindred; favor of collateral discrimi- such nation does establish undue other tend when facts and produced. tending . to show such influence circumstances are Separation Explanation. Testimony -: -: Wife: 4. separated wife, at the he testator declared from his that house, single living her, month, at her mother’s it,” he “hated to do but did it account of “his trouble,” making though, perhaps, sufficiently definite accepted gestae, to be and circumstantial res is nevertheless tending admissible as to show his mental attitude towards his family, namely, regret part and towards his wife with her and to their subservience will. Other -: -: Facts and 5. Circumstances: Presumed Continu- Testimony married, when testator ance. his mother and TERM. OCTOBER Vol. .

Gott Dennis. him, three maiden sisters lived with while brother, him, partners, general who also lived with were money-maker; family the head and of front the firm and and the neighborhood girl that he married her and with her at month, separated home for a from her and re- and then mother’s family, to -the where he continued accumulate to reside and turned property; separated that when her half- he from her he told it,” brother that he “hated do it on account of “his to but did family making trouble;” him born that in due child was course-a marriage, frequently child, he wife and and visited his money treated them with affection and for their furnished them another, 'they support, years part, and after to seven moved .later letters, money of the State wrote them affectionate sent them support age contributed their to the child married at until together sixteen, .expressed of with intention to leave his his child, to his and circumstances from which the are.facts by upon family exercise undue influence him members 'of his inferred; being exist, be and such influence once shown to ' presumed is to have continued. Separation Expressed '6. -: -: Desire to Wife: Re- marry by Her: Declarations. In an action to set aside will which practically only testator in' disinherited his child favor of his sister, brother, nephews brought nieces, by the child and charge based on the of undue that was the result influence ex- family, by testimony by ercised his his wife and said that, years separated child to the effect after he had from his expressed divorce, wife and she obtained a he a wish to re- marry her, objected it, family prevented but his is not com- petent prove him; the truth of such declarations attributed to expressed but letters written to them in which he such wish are competent purpose showing for the his mental state towards family, his wife child and towards his in that show that his state mind continued to be one affection towards wife his subserviency family. and child and one of his -to will of Presumption Question Jury. ———: and Proof of Continuance: Where the circumstantial evidence show tends to that the testa- tory’s family very exercised such undue influence over him the separate outset of his married life as to cause him to from his against will; any subsequently wife in order that she and born might deprived rights property, child of their lawful in his influence, separation, that shown to exist at the time of such continue, presumed strong explain enough and to be practical marriage disinheritance of his child born many years afterwards; his will made it is shown to have . MISSOURI, COURT SUPREME OF v. Dennis.

Gott separation, that, he returned continued after such support family reside with and to his continued thereafter to. throughout them and influences was surrounded same years life; few remainder of his that wife and child a separated away part of he from her a different the State went married, again State; he was not and later to a far distant that notwithstanding family, again attempted and never leave wife and con- his affection and solicitude for his deserted child wife, afterwards; visited his tinued ever none of them, her she was never at the and never invited to visit them, although supported she house which he for and car.ed away years only a two for seven lived with her mother mile or born, after his child was visited her there and treated often affection; and his never took child her fond except home, invited to his time four after her one marriage visiting when she her mother’s brother in the although neighborhood, written about time of her letters her; marriage expressed plan she visit by any of the of last sickness or death numerous notified his although family, all of were named as his them members of testimony, showing legatees that in his will. And this the same separate him to wife in influences which caused his 1871 con- life, throughout presumption to dominate him the tinued and continues, influence once shown exist that undue to are sufficient jury question require to the of the whether his will to a submission only by bequeathed five hundred dollars made in which large only and all the rest of a estate to his child devised to his sister, brother, nephews kindred, consisting of his and collateral begun nieces, at the result of undue influence time of his was the up marriage to the the will was made. continued time and Duty grossly Unjust of A Unnatural Will: Court. -: and un- 8. imposes duty upon just the to will court care- and unnatural the bearing fully and circumstances on the issue the facts examine all of undue influence. --: Discrimination Itself Evidence: Burden -: Unnatural

9. being evidence undue in- of Proof. There other circumstantial (innatural by gross inequality fluence, the discrimination and only against his of themselves become evidence of child testator proof influence, burden from such and shift the undue such proponents will the to that the was not the show to contestant proof influence, just as rule shifts the burden of the of such result the relation between in which confidential will in a contest beneficiary is shown. and the testator TERM. OCTOBER 1922.

Gott v. Dennis. (cid:127)10. DECLARATIONS OF Remote. TESTATOR: Isolated and Isolated concerning verbal declarations the testator child provide years prior her, many his intention made to for death, generally weight and are often do entitled to but little not constitute substantial But where cover evidence. period long whole of his after the birth of the child and con- life story one mental attitude stitute continued connected of his separated mother, towards her her had within from whom he particularly marriage, they competent, a month are after his many years by so where are letters written confirmed ' child, after, showing continued affection'for birth all her, exculpating fidelity her, praising mother for expressing to her mother from blame indebtedness him.

her treatment of Act., right -: 11. Overt have her sub- contestant’s case ground jury mitted to cannot that she be denied the sole was ex- has failed to act of undue influence show some overt made, very at time where erted the testator operative previously acquired such influence was and continued up will; and influence was ac- to the time he made his that such quired facts and circum- continued be established so stances, testimony necessary. and direct is not Evil -: Exercised Beneficiaries of Influence. Al- Others: greater though devised the some the beneficiaries to whom was part property part undue no in the testator’s imputable operated produce the evil influence tending there to show to them. Where is .substantial deprive wife the evil influence testator’s might in his born to him of their lawful share mother, brother, begun by sisters three and other maiden operated sepa- members of his wife that such evil influence continued rate him from his will, "time, 1912, infected with the made at his down aside, although illegality the mother and and should be set virus of died, previously beneficiaries are and the some the-sisters nieces, part nephews in the act no immediate and and had disinheriting practically produced his child. the Against Inadmissible Others. of Beneficiaries: -: Statements 13. beneficiary testator, a who is a the sister of made Statements wife, separa- sister, will, to his deceased in his her, their would see the effect that tion again, nor and that neither she not live with her brother did any property, get (the plaintiff) in- are would ever child COURT OF SUPREME MISSOURI, Gott v. Dennis. against nephews principal admissible nieces are who the long' charged beneficiaries of made afterwards and his. to be product the of the evil influences exerted sisters said family. and other members of his 14. -: Declarations Transactions Before and After Will Was family Made. Where the roots of the undue testator’s permeate marriage his whole life after his his acts and up regarding declarations to the time of his death his transactions with the members of his member thereof are" ad- evidence, previous 'missible to show that their relations and state of mind .towards each other to exist. continued And also surrounding gift sister, the evidence of facts the of bonds to a executed, admissible, tending made after the will was are why change during . show he did not his will he survived its execution. 15. INCAPACITY: Treatment of Unnatural Child. Harsh and un- disposition property, natural of testator’s harsh and unnatural treatment his wife and his subservience mother, will of brother sister who influenced to- him for- marriage month, sake his wife after a of a circumstances are. testamentary capacity. which tend to discredit Appeal Davis, from Saline Circuit Court.—Hon. Samuel

Judge. REVERSED AND REMANDED. Boy Martin, D.

Ernest D. Williams Robert M. Reynolds appellant.

(1) giving peremptory The court erred in in- demurrer, nature óf a struction close of the directing sustaining plaintiff’s á verdict case, will. question jury under all the It was for the evidence in have been and the cause should submitted record, .testamentary jury, capacity to lack of both as v. Catron, as to undue influence. McFadden Mo. 252; 110; 190 Mo. Roberts v. Blossom, Bradford v. Bartlett, 680; v. Buchter, 68; Mo. Meier Mo. Holton McLaughlin, 314; 208 Mo. Teckenbrock Cochrane, Naylor v. 535; 523.; 236 Mb. Turner v.. Anderson, n Yol. TERM. 1922. OCTOBER v. Dennis.'

Gott y. Mo. 252 423; Bowden, Wendling 248 Mo. MeRuer, not neces- of undue influence 647. The is proof (2) testi- and positive out from direct sarily be made from facts as inference but often it an mony, must rest in evidence. Whenever proven circumstances undue establish tending there substantial or facts testimony it be direct influence, whether flows naturally from which such influence circumstances the one for product, question jury as becomes its 114 Maddox, Maddox v. determine, and the court. v. 110; Meier Blossom, v. 190 Mo-. 35; Mo. Bradford v. 209 McLaughlin, Teckenbrock 168; Buchter, 197 Mo. Mo. Undue (3)- 523. Anderson, Turner v. 236 535'; Mo. or from certain facts from a be inferred influence may may It of facts circumstances. shown combination of. mental condition parties, the relation of the the character provisions will, testator, with parties charged the interest of the transaction,- con- other and circumstances or exercising it, facts it. upon of undue question and bearing with nected all the determined always light influence is to be the ex- bearing with connected circumstances thereof. provisions along with the ecution v. 114 433; Maddox, 98 Mo. Maddox Haugher, v. Myers v.- 446; 141 Romine, v. Mo. Crausen Dingman Mo. 35; Mo. 691; Blossom, Mo. Í90 Bradford Crausen, (4) Unnatural Buchter, Meier v. 119; testator of his disposition by a unfair to the exclusion child, own practical exclusion made other though tó is at relatives, even such child, with and at suspicion, once once jealousy regarded while such unnatural inquiry, compels searching un- not alone be sufficient to establish disposition be other tend- if there circumstances influence, yet due though slight, even influence, undue to show such ing together unfair disposition,' such unnatural are sufficient may appear, other circumstances such . jury. Blossom, to the Bradford take the case SUPREME COURT OP MISSOURI, Gott v. Dennis. 119; 98; Mo. v. Mo. Buchter, Meier 197 Holton v. Coch- y. McLaughlin, Teckenbroek 314; 208 Mo. 209 Mo. ran, y. v, Wendling Turner Mo. 533; Anderson, 523; 236 (5) ample 252 Bowden, Mo. There are in facts provisions record aside the unnatural and unfair jury might of the will which the well find that the will deceased a natural result of the in- undue fluence of defendants over and of no him, which the. explanation denial is made, and for no whatever offered in the facts, record. Such when considered provisions connection with the are over- whelming. (6) excluding The court erred in testi- mony plaintiff large gifts offered as to made certain of the defendants his lifetime, such gifts tending to show undue influence such defendants disposition property. over the deceased in the of his Meier v. Buchter, Mo. 68; 197 Holton v. 208 Cochran, Mo. 314. Harvey Bellamy, & F. Rector and Lamm, Bohl- Alf.

ing respondents. Lamm for &

(1) justified fully giving The court was peremptory instruction, in the nature aof demurrer plaintiff’s establishing controversy. evidence, in There was no evidence entire record that the tes- any tator was of unsound nor mind, substantial evidence any influence, undue nor that influence kind making exercised over testator at the time of will. there is no When mentary incapacity substantial evidence, either of testa- duty

or undue it is influence, jury. the court to so instruct Teckenbroek v. Mc- Campbell Laughlin, 533; 209 Mo. v. Mo. 162 Carlisle, Fulbright 634; Sehr v. 153 Lindeman, Mo. 276; v. County, 145 Mo. McFadin v. 432; 138 Catron, Mo. Riley Sherwood, v. 144 Mo. 197; 354; Yon de Yeld v. Judy, 348; 143 Mo. Berteret, v. 131 Berteret, Mo. 630; 142 Mo. 399; Lust, Cash v. DeFoe v. DeFoe, 144 OCTOBER TERM. 1922. Gott v. Dennis. Hughes

Mo. v. 458; v. 183 Mo. Jackson Rader, 630; Rneggesick, Hardin, 83 Mo. Brinkman v. 185; 71 Mo. y. Kamp, 553; Tibbe v. 154 Mo. 543; Paxton, Morton Myers Hanger, Appleby 110 Mo. 456; v. 433; 98 Mo. y. Wendling 685; Brock, Mo. 647; 252 Mo. Bowden, Goedecke v. Lindhorst, 504; Nook Znck, (2) proponents S. W. 238. behalf of thoroughly established the fact testator was of sound mind at the time of the execution of his will. And where such mental condition is shown aliunde medi- speculations, relating cal are thereto, entitled to but weight. little Rankin v. 61 Mo. Rankin, 295. The testi- mony Spotts, plaintiff, of for Dr. witness mere was speculation, say (3) to the least. While influence undue may be shown facts and circumstances and need always proved by testimony, yet positive direct and tending there must be substantial evidence to establish such undue influence. Jackson v. 185; 83 Hardin, Mo. Kamp, Hughes 545; Tibbe v. 154 Mo. v. 183 Rader, Mo. Knapp Co., v. Louis Trust 630; 199 Mo. St. 640. There (4) no such evidence in the case at bar. The undue contemplated necessary it law, which was appellant for to such show, was influence as dominated testator at the will of the the time of its execution. And persuasion, such influence must amount “over coer- destroying agency power or free cion, force, the and will Gibony Jackson of the testator.” v. Hardin, 185; 83 Mo. Mo. Foster, 106,137; v. 230 McFadin v. 138 Mo. Catron, Rueggesick, Campbell 197; 553; Brinkmann v. Mo. 71 459; Mo. 646; v. 162 Winn v. Carlisle, Grier, 217 Mo. Nook 233 No evidence Zuck, v. S. W. of the above character trial was shown There was evi- nisi. no legatees, any dence that the or or them, devisees one of persuaded, procured or coerced,, induced, testator make his he did. there evi- Furthermore, will as was no any legatees de- dence that such devisees knew that contemplated making ceased had made a will or a will. (5) oppor- Nor does the existence of the motive and tunity undue of affirmative influence, absence

74 COURT OF MISSOURI, SUPREME

Gott v. presumption evidence of such' exercise, its warrant mind .influence in a case where is- unim- testator’s paired opportunity un- where he had an did provisions will. this derstand, case, (6) presumption Mo. 197. Catron, McFadin v. always validity favor the. of. unjust provisions mere fact of discrimination in its with- out Inequality does shift the burden' on the more, defendants. n presumption in- no of undue alone raises though gives nearly even the testator all of fluence, legatees. estate to his McFadin v.. Catron, 252; Mo. 197; McFadin Farmer Catron, v. Farmer, 35; (cid:127)Mo. 530; Maddox, Maddox v. 114 Mo. Berberet (7) though Even 131 Mo. 399. testator’s Berberet, Rachael who Dennis, sister, him; resided have plaintiff’s^ our “Now we' have mother, said support yon any help brother back to ns can’t have him any will see to that he will more; we not leave of his ’’ you your yet child, or to such statements according testimony, were made to witness, be- County, thirty-three years fore left Saline she the execution the will. These were statements probative too remote to have force in- of undue fluence on at the testator time of the execution not have been and should admitted in evidence. 396; Ketchum v. 76 Mo.' Stearns, Fulton v.' Freeland,. 219 Mo. 494. such Besides, statements were mere hear- say weight,, and entitled little if even been (8) by so remote. The statements made testator plaintiff’s other,witnesses mother some time between by plaintiff 1879, 1871 and made those testator to in any by 1892, were no evidence of nndue influence the de- of fendants mind testator at the over.the time of the by execution of the will. Statements dr remarks made contemporaneous making a testator, with the the of only are evidence the of state his of mind at those and not times evidence of truth the of the facts so stated, purpose not to taken are be as true the of TERM. 1922. OCTOBER Dennis,

Gott v. establishing defeating will. the -undue Hayes, Hayes 95; Coldwell, 228 W. Coldwell v. S. McLaughlin, 533; 209 Mo. 155; Teckenbrock v. Mo. only (-9) Mo. 703. 691, The Crowson, Crowson v. property gifts as of excluded court show the offer of the defendants was made N. and Rachael Dennis David Goodloe deceased (cid:127) gave his about $4000 sister Dennis,. said Rachael Liberty in ex- court not err 1919, bonds did testimony. cluding seven this This was possible tendency no could will was made and to at have over, undue influence of the testator mind show of his will 1912. time of the execution Meier 68. Buchter, Appeal from the of SMALL, Court Circuit . C. County. Den to contest will Davis

Saline of P. Suit county July 1918. 22, who died in nis, said Said April probate August admitted to 6,1912, was dated by plaintiff, Gott, 1918. Petition to contest filed OUie 9, January testator, county property of died seized said By $45,000 $50,000.

of the value of said will he be- queathed daughter, plaintiff to his Gott, Ollie who was disposing $500, the sum of of rest child, his property his Rachael of follows: A. Dennis, a sis- $1000; $250; Narcissa B. Goodloe, sister, ter, Annie bequests paid Igo, niece, $250; said three be of out personal He next estate. divided his the balance of personal equal giving into fourteen shares, one nephews, to each of his nieces share five of whom Igo, Mrs. sister, the children six were of deceased; sister, the children Narcissa were Goodloe, only son one and child Austin brother, to the children two and two shares Dennis, deceased Igo. then He children Mrs. that all directed proceeds equally and the divided real estate sold nephews following-named among each nieces, SUPREME COURT OF MISSOURI, Gott v. Dennis. Igo, to receive one-tenth: R. Sarah Charles C. Swisher^ Igo, Igo, Samuel S. Annie B. W. Austin John Dennis, Higgins H. David N. Groodloe, L. Groodloe, Goodloe, Sarah C. Collins Arch L. and Goodloe. appointed by

He will Austin brother, John Mr. Leonard D. Dennis, Murrell, and with- executors, by out bond. His will was witnessed Charles Niemeier, Dyke.. J. T. Fisher and Jacob Van legatees All the devisees of and as well testator, as the executors of his were made will, defendants proceedings. ground contest the contest by plaintiff, stated mental ca- contestant, want of pacity undue influence over testator and defendants. denying’ grounds The defendants filed answer of con- propounded prayed test, said and will same ad- judged to be the last will and testament of said Dennis. September

At the trial, which was 29, commenced making proof probate 1919, formal thereof, proponents introduced Niemeier Charles and Van Jacob Dyke, signing executing who testified the due the will testator before them as and that witnesses, memory. They he was then and of sound mind there f also testified attestation to the o J. said T. Fisher, another who witness de will, ceased at the time of trial. Dyke

Van also testified that he had lived Marshall acquainted since 1867; became Davis P. Dennis 1878, when he rented land Saw occasion- . ally during from that time on his life time. Saw him day April .he made will, 1912. “Mr. my came into office asked me write will, apart me took what said he wanted written in his pencil I took it down afterwards wrote day will. I don’t think Mr. Dennis in on came signed it. I it think was a different date. IBut gave wrote that will from memorandum that he me signed just and he came in and read it over it just was written. way said it was. He he wanted OCTOBER TERM. 1922. Dennis. Gott v.

it.” witness know cross-examination “Don’t On said: at time. He that he with me that discussed spoke yes, really, having daughter, me that about a daughter, was the first time knew a when I he had he spoke writing thing to me The about will. first he my daughter, said to me want leave Mrs. was, ‘I Grott- —called her first That was the first item $500.’ name— gave writing very he tinctly, me in the will. I dis- recollect really did know at that

because I not he daughter. had a I don’t believe he had memoranda say with him. not to that, as do not know who Would day, he came came town with there himself signed day as far as I know. The the will he not was long.” my very in office testimony plaintiff, the

The contestant, thereupon introduced and tended show that about 1867 family Kentucky the moved from and settled on Napton County, a near in rented farm Saline Missouri. The consisted of two brothers, the Davis and Aus- single, probably grown young both who then tin, were having Davis been soldier in a the Confederate men, Army. them came- maiden With and lived three sisters, well the Catherine as as Rachael, They Jane, mother. together many years, there for two the dying Catherine and the mother sisters, Jane, and there trial. before the continued brother, Austin, to live place just home until he the when he mar- married — ried is shown—and remained there after not mar- riage with his time. wife child some From the time partners the Missouri, moved brothers were farming. They prosperous acquired were ownership farm had rented and lived on,. eighty adjoining, well as another acres and still another neighbor- farm some two hundred acres the same joint hood. The to all deeds made in land were of both the brothers. names Just when these farms were acquired appear does but it evidence, years It is inferable that it was some SUPREME COURT OP MISSOURI,

Gott v. partner- brothers dissolved their 1911 or when the receiving ship farming Austin their land, divided wife farm, the 200-acre place before, the home removed few had receiving place home P. acres and Davis personal adjoining. prop- eighty what acres Just any, erty, they then shown divided, if it is shown that when he died record, but Davis aggregating in some notes half interest or $6000, $5000 payable to himself and his brother which were Austin. in own Davis had no bank account bank name, the up in account name of Dennis Brothers the was the in his death. How much was that of account does appear. bank There were also ten shares of stock put in name of Dennis Brothers. Austin was the on the plaintiff by the and he in testified, stand effect, that partners his brother were all their lives after “we got attending I to. to business it was all, at before was twenty-one.” same 1867, About the time, married family sister of Mr. Mrs. her of Dennis, Goodloe, and Kentucky moved from children, some seven also settled on a farm near her brother and mother in Saline County. Igo, Another had Kentucky, sister, Mrs. died in early day, seven an children, at She, also, probably about the time the Dennises came to Missouri, Kentucky they also removed from and settled-near their place. Igoes uncle’s All the of the Dennises, and Good- exception with loes,- two three of the latter, .part Igoes continued to live near each other, living' Goodloes with times the Dennises at the home place.

Shortly after the Dennises came Missouri, Mrs. and her also Kentucky Shelton removed from County, in settled Saline a mile or so from the Dennis daughter by home. Mrs. had a Shelton her first husband, In Martha 1871, Senter. Davis P. Dennis married Miss They Senter. were married at her mother’s home, where together during lived for about one month, which TEEM. 1922. OCTOBER . Dennis. Gott v.

# day go home each to his would timé Mr. Dennis upon return to his farm and to his work attend expiration home about sundown. At bride’s and returned wife, with his month Dennis ceased to live the balance of to his where he remained home, own January marriage, plaintiff this horn life. The with reside mother continued 13, and'her 1872.. She grandmother, until about mother and Shelton, Mrs. year removed Dennis Mrs. 1879,when (cid:127) until Carthage, some resided Missouri, where plaintiff, September, year in in 1888, .time after age, mar- being'something then over sixteen re- her husband afterwards ried to Mr. Gott. She and during Carthage Louis moved St. from Missouri Fair,

World’s and removed Washington when Before 1879, State of Carthage, Dennis moved the exáct time does Mrs.

appear, P. divorce she obtained a from Davis suggestion it cm some the record that wás There is ground not. but she testified was abandonment, separation ground.. the cause of the As to Mr. between and Mrs. there was Dennis,' Mr. said at-the time and often thereafter, objected living family it was because his folks or to his - with his wife and made him that account. trouble notwithstanding he continued that, evidence shows people, frequently live with own home visit- ed his wife and affection child, treated them with support money furnished them with for their until Carthage, removed to and that thereafter he wrote them money, affectionate and furnished them letters con- with daughter tributing support, to their until mar- ried

In Mrs. married Mr. 1900, Neelis, Dennis Joplin lived at 1904, until when died. She then family, daughter, made her home with her Mrs. Gott and removed them to the State Wash- ington. mother she Plaintiff’s testified SUPREME COURT OE MISSOURI, _

Gott v. Dennis. Carthage arranged moved she her husband had get again, married but he her to wanted wait, gave as it a reason that was on account got Carthage

troubles. That afterwards while at she a letter from Mr. as lost, Dennis to which she got she testifies follows: a letter that he would as “I my daughter Thanksgiv- meet me and certain at a ing, again, and that be we re-married and I an- would correspondence swered his letter and our was broken off got any I never somehow; answer so did not him, from I why ... not come. [Saline know he did left I Coun- ty] years, for waited him to come don’t know years. many my got how I I the time waited di-. year vorce until 1900.” That was the she Mr. married Neelis. mother Plaintiff’s also certain identified let- ters which she received from Mr. 1888 and being handwriting. They 1889,as in his as were follows: “Napton Sept. ’88. Matie—Yours of the' always glad 18th to you hand I am to hear from Ollie I had a letter from Olie since she was married I negligent writing am about wil answer Olies letter soon glad you hope you I was to hear from I are not mistaken pleased marrying good about Olie man I am from what you say you give up while I hate know- hir I you know are a woman sensible and know she is better hope may always of if is suited she I happy she She’ picture wrote me she would me hir send I would like to have it and hir husbands also wil write hir concerning hope you may I hav a better and easier time and you never see our prase in need deserve al Child nothing I have done for Olie owe while I a Olie Fathers always you care Mattie I felt that I owed more to than hope you one else wil not hav to so work hard now you may and that soon be able to live with Olie and hav plenty working gets without factory in that old if Olie keeping go to house I I wil think and see hir some time you you and would like see living then if are not with you hir go I wil let good by when will know I to see hir dont tel hir ever as D P Dennis. TERM. OCTOBER y.

Gott Dermis. date late come due to hand I also “Mattie Yours got you you sometime since writen a letter from I go go I when I would to Olie some time cant tel I wil se you very busy coming wil I am and winter let now present coming when dont know when I am tel Cant ;el any thing about it it would make hir- anxious Olié as you anything Got what ocupation hav told me about Mr. is doing is is he a tel me what his farmer is living how what his Sircumstances is father go how much has he tel me al about Mr. Got &c along getting come see Olie and see how she is I wil if some I As P. hir, ever, Dennis, can see D. Napton Mo. Nov. ’88.

“Napton Mo. Nov. Mattie Yours of date ’88 late Thanksgiving would like come to see Olie hand my you I but so wil business is I cant let know when coming hope am when Cant tell She must I write wel to hir as D. Ever, soon P. Dennis.

“Napton Mo Jan 89 Mattie Yours the Dec come glad you due to hand was to hear was wel and had been comfortably to se Olie winter fixéd forgot yet I not writen have to Olie hir I hav Street you Number wil write as soon I hear as nuse no yo your that would interest Mrs Senter brothers wife Monday was hurried last She had Punmonia fever was dayes hope you sick few to hear from soon amI as ever D. P. Dennis.” marriage plaintiff’s

After her to Mr. mother Neelis, never had further communication hus- with first band. plaintiff,

In 1892, Mrs. visited her Gott, father and County. other relatives in Saline She two or three probably living uncles, her mother’s there. She brothers, testifies this visit:

“My my my father came to uncle’s, uncle.that Napton, near and took home; me he said he came go get me ready home, take that he me wanted him, and I did I visited home. think I 296 Mo.—6 SUPREME COURT OF MISSOURI,

n v. Dennis. Gott being to call he me to home referred and said.for my my my home, it home and be home, that it was would . year in the that time That that is about all at was but distinctly long I visited don’t remember I how. haye my than been more there with it could not father, constantly; he took I two weeks don’tThink, is, they Swinney, Ar near me to Mrs: visit .Mr. and Saturday, you for and end come Rock, row he-said I be to he to satisfied so come.' did seem would He stay longer I any at whenever me than a'week let my away, go he then I went to uncle's, and would horseback, stayed and I time, not také me that went did a only my just days. back here once to see father, I few Black- made Well, 1 visits made one visit. other my I house. father’s When once water, but my living there was his'brother, father visited with and his sister Rachael child, his wife and and Austin, Igo. Sam and your you-, Now state '.how Aunt-Rachael “Q. you treated, your A. visit. that' .Uncle-Austin

.and on. any- my Uncle I said don’t remember Austin Well, thing;.-he spoke .not enter' occasions, to me-on but he-did only' -my Rachael Aunt me, with and conversation into - the-day.- spoke occurrences of can- Well, of common I. . they tiling said, what for wasn’t not remember my-life formerly importance, it did not bear nor and they past, treated on the -me, whole, cool, in the evenings my they father of sat when he would never with though of course I was I felt as ex- house, be pected stay them, when he with would living they downstairs room, room, go rooms, and of retire, off their course I did would staying there down alone him, like ánd that not feel they my way treated me. When I left, about my Blackwater because me over to took trunk father way spoke over Blackwater there. On the he was my spoke very affectionately her, mother, being, good gave spoke woman, -he her all óf TEEM. 1922. OCTOBEE

Gott taking praise raising she had done for what see her and me care of and for to look me, property at she that I should have his was cared his death. re-marrying say her? about there

“Q. What did corresponding the time A. He said that were marriage my intended, intended, and that re-marry his troubles hut that on' of her, account not; them. at home he could he was influenced *‘ I the first In Cross-examination: was visit. living then in after I I was made there left. St. back my in aunt went off 1907. I said to went west Louis; staying down feel like there her room and that I did not my up- I a room then I went aunt, with father. had with large got house. stairs she was a I there where was, My September, in uncle’s wife me at Black- 1892. .met trip. I on visited two or three families that water. I My here. husband not with me.” had three uncles was that further testified while she still Plaintiff’s mother separated County in after she from her Saline expressed great always for fondness he husband daughter property expected all he to'leave and said during on one that died; he that occasion to time when told her that she Eachael sisters, Jane, the two together; live that should not Jane and her husband support help have to said “now we our brother back you any have him she more,” said, us cannot “We any it that he not leave see to will thing. you your the same or child.” Eachael said 'join in and did not the con- Austin was there Dennis ' plaintiff’s Mr., Shelton, versation. the half-brother- Mr. Dennis and his relations and who who knew mother, neighborhood until after Mr. in the same Dennis Eved (cid:127) also, a with died, testified number conversations very to the effect that he was fond of his Mr. Dennis separa- that Dennis told him the child,'and reason he thereafter, a number of times tion and family, of-his could not with his wife was account live him wife, trouble between made MISSOURI, SUPREME COURT OF Gott v. provide expected for he he them said that the fu- anything,— never ture should want for and see that daughter expected to inherit what left. always spoke kindly He with reference his wife and always. The conversation he had Mr. last ehild— year about before his Dennis about his sister was testimony other to the effect death. There was that Mr. spoke plaintiff girl, others his little proud she “favored” that “he and that was her.” That was plaintiff

Being recalled, testified that she Washington moved to wrote she letters to her father. not notified of That she was his death of defend- anyone, ants that she ascertained that he was by reading a week or so afterwards dead a notice of his newspaper published death at Marshall for which she a subscriber. testimony prove tending

There also that the indulged liquor intoxicating deceased many seeing but no one death, testified to him un- liquor except der the influence once at Jim Jones’s sale, the time of which the witness was unable to fix. That spells pneumonia years he had several several before good year that he in death, his fore his'death health was about a be- until last which sickness, lasted days. age three four exactly Mr. Dennis is not but one shown, witness who was said a in soldier Army, Union said that Mr. Dennis was a soldier in the Army Confederate was three or four older than he that so Mr. Dennis was, must have been well ad- years, nearly, quite, eighty years in vanced if not old when he died, 1918. plaintiff

Austin Dennis, brother, testified for spoke that he never disposi- to his brother about what tion he should make of his his will, and that he never knew he made a will until after his death.

Rachael placed Dennis, also was sister, on the plaintiff, simply stand but she testified that she always had her brother, and she was not asked OCTOBER TERM.

Gott v. Dennis. testify anything relating making and sluedid not to the testify, of his will. did Ms She however, that gave death her brother her a ten or twelve hundred-dol- objection lar respondents’ and on automobile, counsel permitted testify she was not as to whether her brother gave plaintiff Liberty her which Bonds, $4000 offered prove that she had claimed that brother had given plaintiff rnling excepted. them to her. To this pnt

Plaintiff also a doctor on the stand who testified signature that from the tremnlons character of his question opinion the will in was of the that the tes- signed palsy tator when he in- will, which absolutely dicated that his mental faculties were not degree hut to what normal, to he could not state, and said say.” you “I counsel, that for leave He also said handwriting (referring a man who has a like that signature will) to the to the could not have absolute con- power, say trol over his will hut he would man that writes tremulous hand is insane. Another plaintiff witness for said Rachael Dennis told probated after the will was that she was satisfied with bequeathed her. $1000 TMs was the substance the case. Thereupon peremptory gave the court instruction to jury to find for the defendants and that the will question last will and testament of P. Davis plaintiff excepted. Dennis. To instruction this The ver- being judgment dict rendered as directed and entered plaintiff filed motion for new thereon, trial, appealed duly denied and she to this court.

I. It is contended that there was evidence of undue being exerted the testator the defend especially Austin ants, Rachael Dennis, the brother and sister of the practically to testator, dis plaintiff,

inherit only the testator’s and heir child inwill, favor stantía^Evidsñce. his collateral relatives, which included all defendants. In cases such direct evidence of undue MISSOURI, OF

86 COURT SUPREME Gott v. may proved necessary. It circumstantial influence is not [Mowry 204 Mo. 193; v. Norman, evidence. 119; Mo. Meier v. 190 Buchter, Bradford v. Blossom, 103; W. l. 228 S. c. Coldwell, Mo. Coldwell v. 68; 197 Ray c.194.] l. v. W. Walker, S. expressed that tbe testator

II. tbe circumstance But plaintiff intended greatest said be affection for or her, to either to leave bis standing is alone, will, of his execution enough sufficient undue Affection: to show influence Expressed her father’s show will, does set aside Intention, competent her and state of mind toward f that, influence issue. evidence o undue other Canty 104; v. Hal l. c. S. W. [Coldwell Coldwell, 228 V. 5.] v. 233 S. Ritter, Kuehn W. S. W. pin, gross inequality III. settled that well It is also amongst bounty those of tbe testator’s tbe distribution by equally therein, entitled share law and nature perhaps, disinheriting bis favor even standing would alone, relatives, collateral Inequality. presumption of undue not raise unjust such tbe but. invalidate discrim sufficient undue influence show when there tend would ination record in the also circumstances facts and other are [Meier influence. tending Buchter, such to show Ray l. c. S. W. 87-90; Walker, 195-96.] l. c. daugh affection for case testator’s In this IV. agáinst gross do not stand discrimination ter and testimony the witness Shelton the tes alone. separation from his the time wife declared tator it,” but it on account do did of “his “hated family making him trouble” not be Proving Facts enough to circumstantial definite and. Undue Influence. e part declaration of. the res mak such gestae, it is admissible authorities, under still, above tending mental attitude towards his bride show TEEM. 1922. OCTOBER.

Gott v. Dennis. month, regret. family, arid towards his to-wit—that a part subserviency fam- to her to the will his from and ily. supra.] Halpin, [Canty There v.' arid other cases, bearing of undue are circumstances on the issue other plaintiff’s to mother influence. When he was married the testator’s maiden sisters dependent mother three and all support, and with him on and were him him, while he and his partners, who lived with brother, were also the evidence shows Davis P. family,, money- and and the head front of firm himself So that for him to take unto a wife and

maker. great “family,” loss children foreshadowed perhaps maiden his mother three sisters and to-wit, and strong therefore had brother also. object nullify marriage motive to to and the con- lay. sequences far in them thereof them so That as their influence that made him his bride at desert fault altar,. of the very threshold without, part, mother, to his sisters brother, cleave contrary not to his trary own inclination and con- wife, law, to human divine is the reasonable explanation most unnatural conduct. of his unlawful “It

In c. we said: Buchter, Meier v. l. necessary prop-, cite to sustain is not authorities undue influence need not be shown direct osition that may proof proof, be established. of facts rationally Ever since which it Sarah inferred.” (who it”) unduly Abraham “hated do influenced also llagar and Ishmael into the with but wilderness send of water and a loaf order bread, a bottle might prop inherit all of Abraham’s son, Isaac, Sarah’s erty human share, and Ishmael should not. receive'his remained undue has same, nature has influence.' by many fainily, been other exercised members as strong-minded good Abra as as Sarah, fathers to make Ishmaelites their to cause them children ham, deprive inheritance. But such con them of their - never sanctioned' law of duct been Moses has COURT MISSOURI, SUPREME OF v. Dennis.

Gott therefore, We circumstantial bold, Missouri. that the this case tends to show testator’s “family” him at such undue influence over exercised separate very outset of married life as to against from prive in order his wife to de- rights property. of their lawful in his them Undue presumed being once exist is influence shown to to con- [Gay 92 Mo. 264.] tinue. v. Gillilan, pre But in continuance this case its is not left to sumption. testimony much There was to show that the throughout same influence to dominate him continued his family life. He continued to reside with his and be by died. the same influences until he surrounded He again again attempted never and never married to leave family, his affection for but and solicitude his de always serted continued. This wife child plaintiff testimony shown and the (with mother and also his letters others, but their phonetic spelling) of 1888 and which letters also pricked show that his conscience him. Mr. Shelton tes year as late as tified that his death the test spoke ator daughter. with kindness of former wife daughter

Both the wife and testified that he re-marry said he but wife, wanted that his objected prevented testimony it. This as to con competent the testator, versations with is course, to show the truth declarations thus attributed to competent him, show his 'mental state towards family, wife towards his to remain continued of affection for the one former and subserviency to the [Coldwell latter. Coldwell, supra.] 104,W. and other cases, S. It is true there are way. pointing long the other circumstances His ab from his wife and sence child and scant communica tion they them several between before and after Washington, plaintiff moved to is shown. But testi wrote letters to fied she her father after she went to Washington to-which she no received answers, OCTOBEE TEEM. 1922.

Gott t. plaintiff’s not have been father’s fanlt, because spoke father shows her with kindness concern- ing year her the before he died. It is also true Ausr put tin Dennis Eachael Dennis were stand by plaintiff, anything Austin testified he never said testator about he made a knew will un- subject, til he died. But Eachael was silent on this happened both were silent as how their brother always desert his wife and child and live them. If against their is not evidence silence it is them, not for testimony them. Their in no manner rebutted, aas matter testimony plaintiff, law, her mother and others tending place show such desertion in the first during and thereafter' continued the life of testator family, caused the undue influence of the Dennis including defendants Austin and Eachael. We also think powerful that an so as to thus dominate the' testator and cause him to leave his wife and child to greatly whom he was out attached, his life, would of (his having remarried) cause to leave his child wife jury might out his will. At least, so infer. of jetsam All flotsam Furthermore: in the tend to indicate only record undue influence as the ra- examination tional of the testator’s most unnatural treat- Apparently ment of and child. his wife none of his wedding, attended his none of them ever visited or her to wife, invited visit and she them, was never family, although at his house. None of they supported with him and were cared for and him, ever visited his child or her invited to visit them him or at his although only away she lived' house, mile or so for the years Apparently first six or seven of her fife. the tes- tator himself never or took invited his child to his home, although he visited her often at her mother’s home be- they Carthage, fore moved to great and treated her with lap affection, took her kissed and caressed any loving her as father would do. It is also inferable that on such occasions this child lisp also “ran to her MISSOURI, OP COURT SUPREME v. Dennis.

Gott kiss the envied lmee, bis climb return and sire’s ” years after show ten letters share. His daughter, Carthage planned to visit his moved to she at visit him they for her to invitation no contained only time shows, the evidence As far as his home. 1892, father’s house her was she was at in her life marriage, years when he invited her her four visiting neighborhood in the an while she him, visit with coolness treated she was there uncle. While Dennis. Her Rachael and his wife Austin great kindness her treated however, father, or her uncle a time two when visited also affection. She go house; whether she was her father’s she did large appear. None this fam- not does invited ily invited her or ever folk ever visited father’s of her Igo, except who called her once them to visit Sam her attending Pair the World’s moments, while for a few plaintiff and her husband then where Louis, St. of her father child, this who was fond So resided. proud of her, was not father fond and whose or death notified his last sickness even family, although all members of her numerous father’s completely, of his will. beneficiaries So them were might jury crowded her infer had out of her usurped place longer no life and father’s perchance, child. hér her father’s Or, considered even she to contest his will under recent the short had our probate year from its them statutes —one to remain silent —admonished year passed. until the The con- many so tinued affection deserted for the husband and father who had mother banished part, even fault their his before child them without strongly they to show tends knew their bom, was due the influence of others which banishment was helpless Otherwise, to resist. would have been ipsa loquitur. hate and bitterness. Res consumed unjust grossly apparently and unnatural In case of an duty of the court to scan the record like this is the Vol. 296] OCTOBER TERM. 1922. y.

Gott carefully for all facts bear and circumstances that Wendling on the issues. [Meier v. l. 197 Mo. c. Buchter, 88; Accordingly, . Bowden, 688.] have we v referred to the details of the evidence with more than usual and we hold there is substantial circum fullness, long offspring stantial evidence that this will was the of years part of undue influence on the testator’s family.

V. being We hold, there therefore, un evidence of gross due influence in inequality this besides case, ánd against unnatural discrimination testator daughter in his that such unnatural discrimination becomes itself evidence of such in undue Unnatural proof fluence, and burden on the Discrimination: thereby of undue issue Burden of Proof. pro from shifted the contestant to the ponents the where same a confidential as relation is Gay 680; shown. [Roberts v. 190 Mo. Gil Bartlett, 92 Mo. Meier v. lilan, Ray 264; Buchter, 197 Mo. l. 88-90; c. l. 195-96; 240 W. Walker, c. McFadin v. S. Catron, 120 Mo. 252.] general not

VI. We are unmindful rule verbal of the testator declarations isolated said to have many years been made before death are entitled weight frequently in such little cases and do ' constitute this substantial evidence. In Verbal case, however, such cover the declarations Declarations. period long sub whole testator’s life marriage year sequent, his within about a story one death and constitute continued and connected to his mental attitude towards his wife and as family. well as,towards Furthermore, are con eighteen by his written about firmed letters separation marriage wife and child twenty-five years before he made and about his will. The genuineness questioned. They these letters is show MISSOURI, COURT OF SUPREME

Gott v. Dennis. give to care he for his failure father’s blamed himself hoped happy never be and would to his she was child, praised in wife for the manner his former need and he Also, her. that had and raised which she cared always any than one his wife he owed more to that felt hoped have to work he would not continue else, who with soon be able live so she hard that would plenty Uott) just (who married Mr. have “Ollie” had factory.” prom working-in He also “without old daughter, wife in these letters visit Ms* ised daughter, tell his cautioned wife it would testimony parole There that the is tes make her anxious. regard his child and solicitude for former wife tator’s year five until one at least death, continued when the witness he Shelton made regarding spoke them. kindness Under testified the this we case hold none circumstances shown evidence should be of the testator declarations jury their because of remoteness from the excluded [Kuehn made. Ritter, time the will from the S. l. c. cases 7, cited.] W. to show that no overt acts It not sufficient

VII. is on the testator exerted at influence were undue very If such influence was made. undue will time previously acquired operative time and was disposition prop making his will in the of his Overt thereby erty vitiated—all will became Acts. be and circumstances shown bv facts necessary. [Mowry testimony in evidence. Direct is Norman, cited.] l. c. and cases may, urged no It however, VIII. that there is nephews nieces whom that the willed evidence part greater had hand such though him. we that even evil over But hold part they therein no are the Beneficiaries of and without which beneficiaries thereof, Influence. Evil under claim would not tending have been made. Where there TERM. OCTOBER Gott v.

prove, in this the whole as we hold there is case, fam influence of will was under made nndne ily operating, mar of his the testator riage in until the his whole made, after will 1871, illegality, will with of and is infected the virus must although set of the or even beneficiaries aside, some, all, produced part in the the will. In the had no act McLaughlin, 209 Mo. l. c. this 542, case of Teckenbrock v. by competent proof “A is shown court said: product undue de- in fact of influence of one be legatee, it out is as much several, of as visee or void if product of undue of all of them— may The innocent not take bad will. bequest merely of a devise or because the result tainted gift of the vice. A an unchaste fetched are free ruling polluted.” be [Same well held hand 190 Mo. v. Bartlett, 703.] Roberts the statements of hold that Jane IX. We separa plaintiff’s mother after her Rachael the effect would their brother to tion again did not live with her their brother see plaintiff, she that neither nor the Statements get any property, ever his child, would Beneficiaries. against inadmissible as were the nieces principal nephews who m were the beneficiaries the will. McLaughlin, Mo. l. [Teckenbrock 541-42; c. Schier Schemme, l;Mo. James v. 134 N. Fairall, baum v. S.) (N. L. R. A. 735, notes.] W. we in this case where the

X. But think roots of the permeate the life the testator whole issues after .of up marriage declarations and acts the time regarding his transactions with his death member thereof are admissible to show After Will’s Acts Execution. previous their whether or not relation ,each towards status other con exist. tinued to Therefore, the evidence and the facts SUPREME COURT OF MISSOURI, y.

Gott gift surrounding, Rachael Liberty- Dennis of the although Bonds should been have received, it was after might the will was It why made. tend to show he did change during his will six its execution. opinion

XI. that the “harsh un We are also question,” disposition natural the will in with paradoxical unnatural treatment of wife harsh, subjection to “his lifetime and child cir “is show, which the tended to folks,” tends to cumstance which discredit maker’s testa mentary (3 capacity.” Ed.) [Schouler 77; on Wills sec. Page 105; sec. 1 Underhill on Wills, 385.] sec. Wills, quoted The above doctrine text-writers was length approval by court Meier Buch this seq., Ray et Mo. l. and in ter, Walker, c. 240 S. bearing on l. 195. other c. The facts the testator’s W. physical com in evidence were condition shown also petent in on both issue of undue circumstances testamentary capacity. fluence and judgment the lower is is, result court the case remanded with set reversed and directions to grant plaintiff judgment herein aside a new principles with the trial accordance announced in our Ragland, opinion. CC., Brown and concur. opinion foregoing

PER CURIAM:—The by Small, opinion adopted the court. All C., is except judges Blair, what said J., James T. concur, paragraph capacity of mental

Case Details

Case Name: Gott v. Dennis

Court Name: Supreme Court of Missouri

Date Published: Dec 18, 1922

Citation: 246 S.W. 218

Court Abbreviation: Mo.