delivered tlie opinion of the court.
This was a petition under section 3980, Revised Statutes, to contest the validity of a will which had been admitted to probate by the probate court of Pike county. The will was.that of Charlotte Bennett, who died on the twenty-fifth of December, 1884, about sixty-five years of age, leaving no bodily issue. The will was executed on December 1, 1884, and was admitted to probate on January 1, 1885. The contestants are the nephews and nieces of the alleged testatrix, children of certain of her brothers, who died prior to her decease. The defendants are legatees under the will, — the principal defendants being Mina Roberts and Frederick Roberts, her husband, who are jointly made the residuary legatees in the will. The petition challenges the validity of the will on three grounds :—
First. Because, at the time of the execution of said instrument and for a long time previous thereto, the said Charlotte Bennett was old and infirm, and her mind had been so greatly weakened and impaired by old age, domestic trouble and disease, that she was incapable of making an intelligent disposition of her property, and had not sufficient mind to comprehend and understand the nature and consequences of said will or the disposition of her property attempted to be made therein.
Second. Because the said Charlotte Bennett was induced to execute said pretended will on account of threats, coercion and undue influence on the part of the defendants, Mina Roberts and Frederick Roberts, her husband.
Third. Because the said Charlotte was induced to execute said pretended will on account of an undue influence exercised over her by the defendant Sophia Fritz.
The answer consisted of a special traverse of each of these grounds. There was a trial before a jury, and a
The evidence adduced at the trial tended to show that the maiden name of Charlotte Bennett was Hicks; that her family resided in West Virginia; that when she .was about sixteen years of age she married one Jacob Linder, and that in 1839, she came with him to Louisiana, Missouri, where she resided until the time of her death. Her husband, Jacob Linder, died about 1870, and she continued to carry on, a small notion store, which they were conducting at the time of his death, and continued to reside in the back and upper room of the store building until her death. Four or five years prior to her death she married one Dr. Bennett, but was shortly after divorced from him upon his petition. Dr. Bennett had let her have five hundred dollars to make a part payment of a debt due by her to Sophia Fritz, which was secured by a mortgage on her real estate. After the divorce, Dr. Bennett brought an action against Mrs. Bennett to recover this sum and interest, and this action was pending at the time of her death. After her divorce from Dr. Bennett she continued to live entirely alone, carrying on the little store and residing in the back room and also in the upper room of the house in which the store was carried on. While so residing she became subject to the hallucination that Dr. Bennett was trying to poison her, and in order to prevent him from poisoning her well, she had a house built over it. Her family relatives continued to live in West Virginia, except such as had removed to other parts of the country. A total cessation of intercourse had taken place between them; for thirty years no communication had passed between them; and they did not learn of her death until a year after it had occurred. Indeed, she never spoke of her relatives to her most intimate friends, and they did not know that she had relatives living. She had made a will, bequeathing all of her property to the Christian church of Louisiana, Missouri,
In this condition Mrs. Bennett sent for the lawyer, who was her counsel in her litigation with Dr. Bennett, for the purpose of having him make her will; A
The signature to the will was not made by the hand of the testatrix, but by Dr. Dreyfus, her attending physician. Dr. Dreyfus could not even testify that she directed him to sign the will, though there was other testimony that she did. He testified as follows : “Q. Why did you do it? A. She could not write. She had very imperfect use of her right hand, and I was requested to sign for her. Q. Who requested you ? A. I could not say positively as to that. I do not
Upon the question of the undue influence of Mrs. Roberts and Mr. Roberts, there was no direct testimony, except that of one witness, Mrs. Gardner. The only circumstantial evidence in support of Mrs. Gardner’s testimony which we glean from the record was the fact that Mrs. Roberts, with the assistance of her husband, was nursing Mrs. Bennett in what all of them, including Mrs. Bennett, understood to be her last illness. Although the evidence does not indicate that Mrs. Bennett was neglected by her other neighbors or by the ladies of the church, or would have been neglected if Mrs. Roberts and her husband had not been in attendance upon her, — yet the fact remains that they were her superiors in what the law on this subject regards as a confidential relation, the relation of patient and nurse upon a dying bed.
We find no substantial evidence to support the charge in the petition of any undue infiuence on the part of Sophia Fritz.
I. The first assignment of error relates to the rulings of the court upon the question of the burden of proof. Before any evidence was heard, the defendants stated that their understanding was that the formal attestation of the will was all they had to prove. The court ruled that this was not sufficient, but that the general burden of proof was on the defendant. To this ruling the defendants excepted. Beyond question, so far as the issue of sanity was concerned, the burden of proof was upon the defendants. In the case of Elliott v. Welby, 13 Mo. App. 19, 28, which was a case of this kind, this court said: “In the present case, according to the established rule in this state, the burden of proof
II. As to the issue of undue influence, the record presents a different question. When the defendants had presented their evidence, showing the execution of the will and supporting their contention that the alleged testatrix was possessed of testamentary capacity when she made the will, they rested. The plaintiffs then went forward with their testimony and presented testimony
In this case, it was not alleged in the petition that Mr. and Mrs. Roberts, or Sophia Fritz, occupied any ■confidential relation towards Mrs. Bennett. The naked ■charge was that the execution of the will was procured by undue influence exerted upon Mrs. Bennett by these persons. The burden of proving this fact, at least so far as showing a confidential relation and bringing the ■cases within the rule wlich would change the burden of proof, rested upon the plaintiffs. The declaration of the court at the outset, that the entire burden of proof rested upon the plaintiffs, seems not to have been harm-' ful, because it had no other influence than to control the order of proof, and this, as we have seen, proceeded in the natural way. So, the refusal .of the court to instruct the jury that on the issue of undue influence the burden was upon the plaintiff, and the action of the ■court in giving without qualification the instruction that the burden was upon the defendants, seems equally harmless; because the existence of the confidential relation between the alleged testatrix and Mrs. Roberts and her husband was indisputably established, so that the ■effect of these rulings was merely an assumption of the ■ existence of an established fact, which in itself had the effect of shifting the burden of proof.
III. The instruction in which the court thus .announced to the jury the rule as to the burden of proof was erroneous, in that it submitted a question of law to the jury, to-wit, the competency of the evidence .adduced to establish the will, by telling them that
IV. We do not, however, go to the length of holding that the instruction was bad because of the word “valid” in its concluding clause in connection with the word “will. ” We do not think that this could fairly be regarded as submitting to the jury the question whether the will was valid in law. The question submitted to them was whether the paper was or was not the will of Mrs. Bennett, and this, at least in ordinary speech, was tantamount to submitting' to them the question of the validity of the will. We think it would be too great a refinement to uphold the objection to the use of the word “ valid” in this connection.
V. George Hind, an attesting witness to the will, was introduced by the proponents, for the purpose of proving the execution of the will and the sanity of the alleged testatrix. Error is assigned on the ruling of the court in allowing him to be cross-examined on the issue of undue influence without requiring the contestants first to call him as their own witness. We see no error in this ruling. Under our state practice, which in this respect follows the practice of the English courts, in contradistinction to the practice of the federal courts, a witness who is sworn to give some evidence, however
VI. The next assignment of error relates to instructions given and refused touching the clause of the petition which charges undue influence exerted upon Mrs. Bennett by Sophia Fritz. We have already said that we see no substantial evidence in the record supporting this allegation. In respect of this allegation, the defendants offered, among their instructions, one couched in the following language: “ Defendants come and demur to so much of the evidence in this case as has been offered for the purpose of proving an undue influence over the testatrix in the making of her will by and on the part of Sophia Fritz. ” This'instruction was refused. On the other hand, the court gave the following instruction on this point, requested by plaintiffs: “If the jury believe, from the evidence in the case, that the paper was executed by the said Charlotte Bennett, by reason of undue influence exercised over her by the defendant Sophia Fritz, and that said paper would not have been so executed but for such undue influence exercised over her by said defendant Sophia Fritz, then the jury must find that said paper is not a valid will. ”
We are unable to put the trial court in the wrong for refusing the instruction which demurred to so much of the evidence as related to this issue of undue influence exerted by Sophia Fritz, because it is not the practice in this state to demur to a part of the evidence, nor, in a strict sense, to demur to the evidence at all. Counsel no doubt intended to have the court direct the jury that there was no evidence to support this sub-issue. If so, counsel should have requested an instruction in apt words so directing the jury.
But we cannot say the same of the instruction above quoted, given at the request of the plaintiffs, because there was no substantial evidence tending to support the
YII. A similar demurrer to the evidence tending to show undue influence on the part of Mina Roberts and Frederick Roberts was interposed, couched in language similar to that above quoted. It was properly refused, for the reason above quoted, and for the additional reason that there was substantial evidence, direct and circumstantial, tending to support the charge of undue influence on the part of these legatees. The circumstance that this evidence consisted in the testimony of a single witness, whose statements of the declarations made by Mrs. Roberts to her were not corroborated, goes for nothing. The testimony of one witness to a point in issue, if it is distinct, explicit and relevant, will take the issue to the jury, no matter how many witnesses may testify to the contrary, and no matter what circumstances may exist tending to discredit the one witness.
Aside from this there was abundant evidence tending to show the existence of a confidential relation between Mrs. Roberts and Mrs. Bennett, in which the latter was helpless and dependent on the former, during the existence of which relation the will was made, and at a time when Mrs. Bennett, if indeed possessing testamentary capacity, was extremely feeble in mind, — subject to hallucinations that persons were endeavoring to poison her, and given to fits of laughing and crying. This state of facts was sufficient to raise a presumption against the validity of the will, under the rule of Street v. Gross, 62 Mo. 226, and other cases already cited. If ■
VIII. The arguments which are directed against the second, third, fourth and fifth instructions given by the court at the request of the plaintiffs, seem to us to be needless'hypercriticism. We do not feel disposed to countenance refinements in dealing with instructions which are intended for the information of plain men in the jury box, who no doubt in many cases read them very loosely.
IX. But we cannot pass over the seventh instruction given by the court at the request of plaintiffs, which undertook to define undue influence as follows : “By undue influence is meant the substitution of the intention of another for that of the testator.” This instruction is plainly vicious, in that it is couched in such general terms that it could be understood by the jury in different senses. The intention of another might become substituted for that of the testator, by merely changing the will or desire of the testator by reasonable and proper argument and persuasion, and this would not constitute undue influence. It has been said by this court: “To make out such a charge of undue influence, it must be shown that an influence was exercised over the mind of the testator which was really a moral coercion, and which constrained him to do that which he did not wish to do, but which, from fear, desire of peace, or some feeling other than affection, he was unable to resist.” Sunderland v. Hood, 13 Mo. App. 238; s. c. affirmed, 84 Mo. 293. In another case this court defines undue influence in the following language: “ Undue influence is that which compels a testator to do
On the other hand, the following instruction, tendered by the defendants and refused by the court, seems to embody in substance the elements of the foregoing definitions of undue influence, and I therefore think that it ought to have, been given: “The court further instructs the jury upon this point, that, in order to invalidate the will here in controversy, any influence that may have been exerted over said Charlotte Bennett, inducing her to make said will, must have been such, and it must be so shown by the evidence, as to overpower her volition to the extent of rendering it subservient to the will of the person so exerting it; or that they exerted their influence in the disposition of her property with such force as to destroy her free agency in reference thereto.” But on this point Judge Rombatjer does not agree with me, — he being of the opinion that this instruction, while not stating the law erroneously, would not, by reason of the generality of its language, have been likely to aid the jury, and that the trial court ought not, therefore, to be nut in the wron^ for refusing it.
XI. The court refused the following instruction, requested by the defendants:
“And the jury are further instructed that persuasions, such as appeal to gratitude for past services, and pity on account of needy circumstances or condition of life, are legitimate and may fairly be pressed on the one making a will as inducements to the disposition of property by will; and even if it were shown, by the evidence in the case, that such influence was exercised over the deceased by Mrs. Roberts and Frederick Roberts or Sophia Fritz, whereby she was induced to make such disposition of her property as provided for in her said will, yet if the jury believe from the evidence that such influence was gained over the deceased by kindness and friendly attention to her, and that it was exercised solely as a persuasive inducement to the making of the said will and the disposition of her property, and not in such a way as to destroy her freedom of will to such an extent that she could not exercise it in accordance with her own judgment, and that she was not thereby constrained to make a will and to make such a disposition of her property as was against her actual will, — then such influence so exercised is not in contemplation of law undue influence and is insufficient to invalidate said will.”
This instruction seems to involve a correct application of the law to a hypothesis of fact which was supported by substantial evidence. It was well calculated to advise a jury of plain men as to what kind of influence will, and what will not, avoid a will. We see no reason why it should not have been given.
XII. The defendants’ instruction, which the court refused, advising the jury as to what constitutes a “sound mind and disposing memory,” seems to have been well enough; but the principle was covered by instructions which the court gave.
“If the jury believe from the evidence in the case that the instrument of writing purporting to be the last will of Charlotte Bennett, deceased, was signed with her name by Dr. J. W. Dreyfus, by her direction and in her presence as her will, and was attested by Greo. Hind and H. W. Lake, in her presence as witnesses thereto, as her will, and they further believed said Hind and Lake to be credible witnesses to the facts testified to by them as to the soundness of the mind of the said deceased at the time of the execution by her of said will, — then the law presumes that said testatrix was of sound and disposing mind, and the burden of proof then rests upon the plaintiffs to overcome by satisr factory proof the presumption of the law that she was of sound mind at the time of making her will.”
We think that this instruction is objectionable as being an argumentative instruction. Parties ought to make their argument to the jury through the lips of their counsel, and the giving of argumentative instructions from the bench ought not to be countenanced. This instruction is also vicious and well calculated to mislead the jury, in that it is so framed as to disturb the free exercise of their judgment by telling them that if they believe the facts testified to by certain witnesses, the law presumes certain results. Such instructions are calculated to mislead the jury into believing that they are to determine the facts according to some artificial rule which they but vaguely understand, and not according to their reason and experience applied to the evidence before them. The true office of presumptions of law is to .determine the burden of proof and to prescribe the result at which the triers of the fact must arrive in the absence of evidence, and not as arguments to disturb the natural volition of jurors.
For the errors pointed out the judgment will be reversed and the cause remanded.