*1 Siegfried Curatrix, His v. By Maud Minor, Harden, A Moll, Fred Joseph Phillip Bren Ethel Seibert, Mrs. Pollack, Pollack, Hady Kat Gamer and Mrs. Haidee Mrs. nan, Schmidt, Paust Driere, Appellants, and La Lucile Idler Haidee Donovan, e Paust, Emma Alma Nelson, Mrs. Robert Elizabeth Moll, May Idler Lehman, Arthur M. Hickey, Bernice Mrs. (2d) Edna W. 38. Gamble. 8 S. April 9, Two, 1928. Division *3 Joseph appellants. Bloch for
Taylor Young Abbott, Fauntleroy, B. & Cullen Edtoards for respondent. *7 DAYIS, C.—This action is a statutory will contest, instituted City
the Circuit Court of the of St. Louis the curatrix of the grandson, only the lineal descendant and heir at law of testator, the against legatees the other devisees and purported named in will, the joined involving the issues fraud, undue influence and lack of testa- mentary capacity. paper writing, February dated 14, 1921, of- fered proponents, purporting in evidence the to be the last will and of Moll, Frederick deceased, testament was found the not to be the last will and testament of deceased. Certain defendants judgment appeal from the verdict. entered finding testator,
The evidence submitted warrants the Moll, decease, leaving of was, widower, Frederick at the time his a a surviving grandson minor, his and Moll, only him Fred his lineal law, and his sole heir at the son of testator’s deceased descendant Moll, Maud curatrix who son, herein, Edwin Moll and his wife after, Moll, prosecutes of minor. Maud this action behalf said testator, the death of in- Edwin Moll before the demise of and George Harden. The testator died in the one W. termarried with seventy-six years age, 1922, of September 3, city Louis on of St. 1921, February 14, dated executing purported will
previously Phillip Pollack, practicing at- a and drawn prepared which was counselor, thirty years the attorney, for more than torney law, and testator, as his answer friend of the and intimate adviser financial survived a and The testator sister shows. and evidence his admits being branch named collateral of each brothers, members three purported will, Feb- of the execution the time will. At Philip boarding of at the home 1921, ruary. the testator 14, previous. The testa- October resided since he had Pollack, where of $150,000, more than two-thirds aggregated probably tor’s estate running gross income estate, annual of real which consisted residue consisting- personalty. about $11,000, The will of February bequeathing after a May 1921, substantial sum to 14, who Hickey, assumed the ceremony status of widow and claimed a marriage solemnity 'without certificate, clergy of a or au- officer, bequeathing, thorized and nephews after various sums to of his and. brothers, nieces sister as -well as all others, few of which aggregated gave $20,000, around the remainder of the estate Phillip grandson Pollack in trust for Fred then about five years Siegfried Pollack, age, Phillip son of then Pollack, years age, providing,'however, payment by seventeen the trus- a month to tee of the sum each remainderman until each $100 age twenty-five years, at respective reached the which time beneficiary was to delivered each freed of trust. On share be will, prepared testator November executed also 1920, 29, by Phillip home, Pollack testator resided at drawn while Pollack’s general February. in its was similar which features provided contest, except legacy it 1921, now .$1000 Pate; except pro- Noah to her.son that it Maud $5.00 corpus grandson of the trust be turned over to the vided that the *8 each, providing Siegfried majority, as his as as reached well Pollack expenses in of illness for each payment for addition to the the .of of a $100 sum month. conducting grog-shop grocery was a testator at Jef In 'the 1883 sug of city avenues in the St. At Louis. the Chouteau
ferson Pollack, liquor in wholesale the gestion business, then testator of conducting* grocery, what is known a thereafter as discontinued the store, to thrive. In testator liquor which seemed moved family 1900- charge leaving a-manager in his saloon. DeSoto, a farm near to farm, housekeeper. employed May Hickey son, as his His he At the daughter, Moll, H'ickey, Elizabeth were also there her Edwin married, Elizabeth but were later divorced. Edwin domiciled. having graduated law, at became the at meantime in Pollack, manager charge had placed-in In 1904 torney of testator. going attempted to Arizona. Testator ill, liquor store became of the Pollack when his calling in affairs became same, later manage to him, merely eventually, however,, assisted tak first muddléd, who at until charge managing business the advent of complete ing farm disposed purchas DeSotó in 1907, Testator prohibition. County; in St. he farm Louis which Denny Koad 1910 ing in keep his son in was unable to it. he interested in because sold 1912 County, Olivétte, of land at S*t.-Louis tract purchased a later He there, Edwin, testator’s son domiciled While erecting a thereon. home Fields, Maud the divorced wife January 14, married 1912, on the-grandson Moll, Fred Noah Pate. had a son She William Pate. Edwin, August on Edwin 1916. 19, and Maud testator, born-to together and bis wife, with Noah Pate,- at lived for Olivette farm approximately year a half, and a testator, when at the solicitation of Pollack, purchased for Maplewood. his son a home Here the grandson Edwin May was born. died 1918; the testator 15, making his home with Maud until the November following, giving her the monthly, which through sum he continued $125 January, 1921. In purchased 1919 testator tract a of land near Clair, St. in Frank- n residing during
lin County, there the summer months. winter The May 1919-20 he lived at the Hickey home in St. Louis. The winter of from 1920-21, continuing October, six months lived he at Phillip the home of Pollack. The winter of 1921-22 he with lived Adolph his E. nephéw, Moll, at whose home he died. 'From to approximately his death, monthly testator contributed allowances-to May February Hickey. 1919, Maud, On widow of Edwin George marriage Harden, kept married which from testator n years, for more than two for fear that he would discontinue the pláintiíf’s- monthly In-1920 Maud sold allowances.- interest - Maplewood property, probate court,' together order of the being own interest, her both interests inherited from Edwin Moll. support $2058.24 Later- was allowed the sum of she her up although including Fred, January, 1921, she received son Fred, monthly sum'for-the'support from the testator. She probate support amount allowed court for Fred’s used the taking During home, -her-name. title the winter of purchase and,Maud grandson Maplewood at the 1919-20 visited testator there, a-visit Maud found that had following home. winter on perturb, him, telling Hickey which home, seemed to sold the- Mrs. enough for boy, leave he would but that-he
a visit her that support, to Maud for further allowance make did intend complained Pollack, of it shows. He also evidence defendants’ neighbor Loring. living, as well named he was as’to whose home *9 Maud knew of the intention of that he it was shown However, - property it. and Defendants’ Maplewood sanctioned the dispose of know where Maud was liv- did not -that he to 'show testimony seems same, reported investigator who. 'to ascertain hired -an ing, and in. writing. _ . had of informed him her testimony that Maud shows Plaintiff’s grandson, with 1921, Maud, testator’s January 28, About" address" arranging, the visit Phillip Pollack, of home him at the upon called Pollack the elder son -testified’that and his Políack by telephoUe. grandson, and and the the-testator,;Maud in the room not was although occurred, conversation part in no the took therefore distinguish purport. its but could talking, loud heard they, lawyer practicing Pollack, a Phillip will is of the proponent One in- testator’s'attorney, who as-such acted years, the of a'number for preparation the the"will in controversy, as well eight as some or previously prepared by nine wills him and by executed the testator. by
Pollack will ring. received the a diamond Other proponents are Siegfried Pollack- Ethel Seibert, and Pollack his son and daughter, the former Whom received the_ one-half of residuary estate, May and the latter Hiekey, reputed $1000. Mrs. testator’s com- formerly mon-law. wife, daughter, her the wife of Edwin Moll, Joseph Brennan, Hady Paust Schmidt and Mrs. Donovan, Kate neither of whom were related testator, blood to received substantial sums. nephews In addition, numerous and nieces- substantial sums. received proponents proof The of the will made due of its execution testamentary capacity By of the testator in solemn form. reason relationship of the fiduciary by Phillip sustained Pollack to the tes- attorney adviser, tator as confidential in answer, admitted his calling proponents proof, twenty-three first adduced witnesses. develops The that Frederick evidence was seven- testator, ty-six years age in at his death. His wife died 1888. In 1900 his with his saloon active connection business ceased. his Thereafter - personal given to his farms. Prior attention was to 1900 had he prevent however, heavy drinker, which, failed to him from been farms and accumulations. From about 1902 until managing his from prohibition, paid $600 Pollack $2400 advent legal managing business and for advice. Dur- year for his saloon indulged excessively sojourn farm the testator ing his at the DeS'oto frequently becoming intoxicating so intoxicated that he liqubr, bordering undress, delirium his condition on was' to dress and unable indulged also farm he excessive- Denny on the Road tremens. While fre- home, to the continuing when he moved Olivette ly it liquor, plaintiff his Upon birth, received becoming quently drunk. grandfather. prid.e to his much name, grandfather’s a source changed death after demeanor to show that tends Moll’s evidence St. purchased a home near In 1919 he in 1918. Edwin of his son months, returning during the summer residing Clair, there 1919, prior During shortly the winter. city of St. Louis suffering from harden- that he was advised thereto, testator physicians to discontinue was told arteries, and ing of the sixty losing did, over which he survive, liquor if he cared use also suf- fall of 1920. He during the summer weight pounds He poor health. hemorrhages and was nasal from severe féred one making Clair home his St. with the idea imbued sought River, to obtain Meramec spots beautiful most for the most beauti- State thought was offered he which prize lawn.- ful went live at 1920, October about Louis Returning to St. infirm, *10 old, sick, was He Boulevard. Pine West on Pollack home eccentric, erratic, and half of the irrational, time suffering from veins, varicose rheumatism, hardening of arteries, the pres- blood sure of 210, nasal hemorrhages, insomnia, stomach trouble and kid- ney disease. lie was childish and an insomniac. daily He talked out loud to himself and was with spells crying. beset frequently He contemplated and threatened many suicide. He had hallucinations.
He floor, walked and wrung the his hands, worrying over reports the only living of Pollack that descendant, plaintiff, was not of his n blood, foundling but had been from asylum. taken a He was suf- fering body and from debility, superinduced mind senile a indulgence forty-year In alcohol. this in Octobér, 1920, condition cooking him home, Pollack took to his and prescribing remedies for paid him. He Pollack a month as board required $100 was morning every Pollack to arise room, cold when bought he complained an electric stove to him of the cost electricity, Pollack pay. which complained Pollack had to Pollack also him' about forcing pancakes him bread, use of on his to eat butter take . against his will. medicine Maplewood
Testator, said, purchased the as has been home for plaintiff Edwin, Maud and' the death which on at of Edwin. devolved sought help of Desiring same, the advice to sell she Pollack rela- executing In this connection a sale bond. Pollack to testator tive sign him bond, to have the testator Maud, when she asked said to goes your Mr. Moll if money over to you this turn “Will pay?” hap- from it as he cares to This you can draw bond, and written, last was as is shown year before pened about approached Pollack show that testimony. record fails to Pollack’s objection. sale, making no of this regard. Testator knew in this Moll advising of her new regarding sale, ad- testator him Maud wrote 1921, January, mailed the December, 1920, testator In dress. early No- address. As new plaintiff allowance to monthly plaintiff was an circulated 1920, Pollack rumor vember incapable becoming Edwin Moll child, that illegitimate asylum foundling from a father, taken had been child and this during the month testator reported to Pollack deceive testator. Maple- living at the had been mother plaintiff’s January, 1921, she name of and that assumed man who with a home wood address; that she present at her assignation house conducting an Company Railways United against claim plaintiff’s had settled cripple for life. Pol- him a had left sustained, which injuries will, made statements execution days before lack, fourteen as follows: mother plaintiff’s presence testator to the gentleman be- this about Pollack Mr. Now, you talk did “Q. twenty-ninth twenty-eighth about Well, A. ing there? him where Mr. I asked Pollack up-Mr. January I called was. *11 “Q. you got your Had January? check for A. Yes, sir; but
I didn’t know Mr. Moll stopping whether Hickey’s then at Mrs: or where he was.
“Q. you up And called Pollack? A. Yes, sir; and he told heme home, was at .his I said, you and ‘Will ask him if he wants see to baby?’ the over.; ‘yes;’ and he said also told I bring baby he me could (cid:127) “Q. you Did take little Freddie to see Mr. Moll? sir; A. Yes, I day. did the next n ‘‘ Q. you Did Pollack tell time to what come? A. At ten o’clock. A, “Q. you Were there at ten o’clock? I think about ten minutes after, quarter. or a ' “Q. you Did ring Yes, the bell-?. A. sir. n “Q. Who answered the bell? A. M|r. Pollack.
“Q. Tell happened what from that you time on until house,-on date, left that that I upstairs that occasion? A. went and Mr. Pollack told me that Mr. Moll inwas the rear room and up standing I Mr. -by went theie and Moll was the radiator, and up holding- pants and back us, he’had his to and baby ran grabbed him, baby and ahold up and'he tried to lift the like this (indicating) to him shaky embrace and so weak he and .he him, baby pulled -lift him (indicating). couldn’t and the this like always asking baby He had habit to his whiskers, stroke and - patted this, did him him on I he like and he the face, and un waited got through baby I said, til and then ‘ITello, he with the grandpa; you?’ suffering said ‘P'am how and he the tortures hell,’ are and cry, to then Mr. in and he started and Pollack came he sat down on says, give you and he ‘Mr. Moll any chair doesn’t intend to more said, I I money,’ said-, and that so?’ ‘What does to ‘Is and he intend give you?’ it, to and he ‘I says, do with it don’t know whether said, he don’t.’ ‘You and he- does whether He went sold that property Maplewood and -with Railways settled' the-United Com money. pany plenty and have You take it and it for sup use through port you of that child and when that is come to me and I will see that man takes care the child.’ And says, the old he ‘Who you living with, posing said, is the man are as Edwin Moll?’ I and you living any man,’ ‘I said, that, am not and he ‘Don’t tell me that,’ you you and I said, cannot tell me ‘Don’t sit there and tell me ‘Why marry said, you Ed that;’ syphilitic, he did and then get money,’ got I mad for, only up old man’s and and went said, him ‘If I my fist at was man I to him and shook would and ‘ ’ good it, you know said, enough That is and well you, lick and he ’ began I child, cry, and theii and your father then he is not the your you living have ‘Who women home?’ says’,. he are the my home;’ said, are says, and I ‘I women ‘You have no running assignation an house,’ I ‘I said, not,’ am said, and he go ‘Yon get can out my house,’ Pollack, said, Mr. I said, ‘I will get out of here,’ and I ‘I said, get my I whén child wrapped up.’ It was time, winter I wrapped my up child grandfather turned around and walking down; had been -up(cid:127) and and he thing never said a all the time that Mr. talking Pollack was me, and he didn’t say, say anything.’ just ‘Don’t it or He was ready like he was drop all the time. I baby, And then said to the *12 ‘Freddie, your grandpa kiss him and tell hé knows where we live any and time' he- wants to Goodbye, visit us he is-welcome.' Grand pa,’ and down;the Pollack followed steps me and when I shut the' door I slammed it.”
-The evidence further Moll, shows that Pollack while told Alice the 'testator was on his deathbed at home, her that he had in 1921 in- (cid:127) presence the that, plaintiff’s testator made statements to mother plaintiff illegitimate
the was was Moll,' and not and man a that a suffering from the disease of Edwin incapable having Moll was a child. foregoing The in placed upon accordance the version it the in repeating testator to his blood relations what had Oc curred at the interview. ill-feeling, There seemed to be no real be tween the testator and his relations. The to blood testator seemed great Adolph have confidence in wife, E. and his and Mrs.
Idler and exception grandson, her husband. With the of-his seemed to think anyone else, more of these relations than and neither' bounty will, received although them one his his dollar-of their They children were remembered. him them, visited and he visited Adolph and sometime before his death went the home of E. Moll n (cid:127) - - to spend days. last his in the office of Pollack: and was executed witnessed by Pollack, and'James-Boyd H. Chester Krum Hill. Pollack could any prior remember the contents of of the wills to the' one 19, 1921, produced November him at .by the tail ends of which were July 1922, Adolph Moll, nephew, trial. E. a 4, When on and hjs dying Pollack were called' to St. Clair to take the testator bed Avenue, gave Mrs. Adolph E. on Waterman Pollack Moll’s home Moll, Adolph who Moll, Alice Avifeof E. nursed deceased the date permission death, see of his instructions to refuse his relatives to' little, him, that, permitted if particularly and her she warned grandson change Avilb him, likely and delete to see he Avould last, January, a ten- will, 1922, from his had executed Avhichhe bequest Adolph thousand dollar E. and would new make obeyed boy. will, leaAdng everything Hickey and Alice to Mrs. having died foregoing testator seen instructions .-without day grandson that.plaintiff’s mother January 29, after presence. August, In
states that Pollack testator’s abused her ‘ 1922, plaintiff's mother learned testator had been taken to very Adolph 4th July gone E. Moll’s home ill. day She had Courtney Clair, him Mr. to see at St. where instruc- charge, Pollack, returning refused to let her in. On Louis, tions had to S't. up home, sleep- called told that she but was the testator Moll’s grandfather. ing. per- Fred saw his Such never facts as are other tinent, any, opinion. if will be found comprises nearly pages
I. The herein record nine hundred printed containing thereto, In addition the briefs matter. state- points ments, arguments run two more than hundred authorities, fifty pages, many in which are cited many'
There are found in bill of exceptions, facts many many evidence, inferences drawn from contentions evidence, as to the of certain which we force conclude to be inex- pedient concerning, change or write which detail would not herein, result but which we have considered. consequently law,
This is will ah contest action at support applies. as to Thus, rule substantial evidence to verdict if there was before the as to the issues in- substantial evidence volved, a question raised, which was for of fact was their determina- *13 solely. words, appellate tion In other an at an court law, in action powerless principles question under our to determine a of fact. regard power Our in that no further than to decide whether extends support Con- substantial evidence to the verdict. evolves record sequently, joined, permitted here con- issues the court is .to on the only for undisputed contestant docu- sider the evidence and the mentary proponents, oral determine and admitted evidence for respect. contains substantial evidence in that whether the record [Craig Rhodes, v. 298 W. S. 756.] conclusively only
II. that the evidence Appellants contend will, that make but testamentary capacity to a shows Moll’s unsound that was of tending to show he iá record void of evidence that to show making it. The evidence tends mind when during in 1919 life, physicians him advised his until his †0 drinker drinking, heavy a and excessive he Kurtzeborn, from Dr. stated witness, of alcohol. Defendants’ his year alcoholism, twice him a once 1907 to he treated also defend- Parsons, Dr. bordering tremens. on delirium condition during illness, last only him witness, saw ants’ stated suffering which he was treating weeks, at time three him for about kidneys, possibly bladder, disease of the inflammation of the from opinion, which, testator arteriosclerosis, nephritis, all and n sclerosis, weakens said, so he a half. Arterio year had had for a and brain, power general and intelligence. lay Three witnesses, intimately him, associated with being after properly qualified, stated that testator was of unsound mind. Dr. Duckworth, who had, had in addition postgraduate to a medical course at Hopkins, army Johns experience hospital-in in a base treat- thereafter'shell,
ing diseases, mental soldiers, shocked having special study made a of mental diseases, and nervous stated that he first treated Moll at St. Clair, Missouri, 1919, when Moll called on him. Testator said to him on his “I am arrival, good health those damn I I going doctors lied you am and want to look me over.” cystaltic He found him suffering pressure blood at nephritis' chronic miseroscopically he showed blood cells pus. He had also chronic very cirrhosis of the liver and bad varicose veins. Testator him pains, told that he suffered with head which bothered him. . Witness also stated that he found Moll suf- fering brought from debility, by indulgence senile on excessive alcohol. debility Senile a described as mental disorder nervous accompanying age, old especially indiscreet, being where mind that of a child. can Sometimes one reason with them and sometimes one cannot. They may have lucid intervals and them for a have week or two. He further stated that the alcohol discontinuance by a seventy seventy-three man years age, from who had been drinking continuously produces a excessively, mental shock as well system. they shock to the full nervous In some instances lack reasoning power. Simon,
Dr. contestant, witness for defined senile dementia as an faculty softening abnormal condition mental caused age gradual dying the brain It is a is incident to old substance. rotting just top,
off of brain. It is a off at the as an so-called old top tree rots off first. characterized certain evi- It is particularly produced dence mind, of the enfeeblement of the arteries of the age, largely old and it in the due contraction is. hardening arteries, brain, which in due turn is caused parts lack of the brain account of nourishment' to certain *14 manifests itself as of vessels. It diminution of the blood caliber mind, by showing to simply one individual enfeeblement an to iiiability con- by memory, faulty judgment, and in others of loss general dress and centrate, or in carelessness about delusion,- mild invariably forgetfulness things. dementia S'enile about recent testator, never had seen Dr. Simon power. the will While weakens if taken alcohol, that hypothetical to the effect questions he answered arteries hardening of produce long period time, over a will to substance; if one accustomed that and deterioration of the brain function. his brain.does drinking and abnormal ceases, he becomes n foregoing The constitutes substantive evidence that testator was mind, thereby of unsound rendering question the issue a of fact for finding jury, regard may whose in that we not disturb. III. -Defendants’ next contention is that the record is without evidence of undue influence. probably "While testator was a man n n n strong throughout greater portion will life, of his early
the evidence advises that 1919; as- man then seventy.two seventy-three years age, 0£ he was a being debilitan!, probably senile progressive, by "the' condition caused during the excessive use of alcohol his life. -At the his execu time of will, mentally tion of his feeble, physically weak, he was and and afflicted with ailments which arterial sclerosis and other undermined subject and affected his His him mentality. condition to rendered attorney Pollack adviser for facile influence. had been his thirty-five years. was, some It natural that he should therefore, prepare controversy, unnatural that document but rather attorney family preparing permit himself and the will should greatly obtaining prepared to be it. facts he by benefited family it es and drew the and that he and benefited relation, presumption from which tablished a confidential arises defendants, easting influence, proof to show undue the burden on Pol influence. executed-freely that the will and without such merely that he fol attempted testifying lack to meet this issue preparation of the suggestions orders of Moll in the lowed had an influence part; but that Pollack will, without influence on his occasions, is him on demonstrated assumed to act overtoil - necessary consummate testimony regarding to the bond Pollack’s Maplewood property. Pol grandson’s in the the sale of interest you him, “Will when she accosted to plaintiff’s lack said mother you goes your bond, and if monéy Moll over to Mr. turii this context, According to pay?” he cares can draw from it as previous without con Pollack said her this seems to been have history of the caso shows Furthermore, sultation Moll. was writ the will at the time j mg so at Pollack’s-home Moll was burn mentally weak. physically Moll was then ten and executed. executed, will was condition, weeks before about two inWhile this grand visit his home to Pollack’s accompanied .his mother to plaintiff suffering the tortures stating that he was greeted them, father. who, home and Pollack, who was at began cry hell, when so presence coming, in the may of their infer, we knew mother, plaintiffs runs, said plaintiff testimony favorable to most -went money.. You any more you give “Mr. Moll intend doesn’t United with the Maplewood and settled property and sold that it and use money. You take plenty Railways Company have
761. child, it support for the of that and when you that is through, come to I will me see that old man takes care of the child.” And says, you living he that are poses is man “Who that as Edwin “Why you Moll?” And when said, marry he did Moll, syphili Ed You.know, only get money? to tic, good the old man’s and well he your is the father you living not of child. Who are the women are assignation running with? You are get an house. Go and out of ’’ my if instances, true, house. These were and we must them consider jury which found, actually true as so Pollack assumed and dominion affairs, and control over the power exercised mind instánce, of In protest Moll. the latter we find no from it Moll, and- foregoing Were countenancing results that circumstances that Pollack control Moll other times, exercised inference over. of particularly more the will. That pro the execution Moll later of nephews nieces, tested to some relative to Pollack’s state-- saying that, if a woman ments, Maud, he had been as was would he gun him, he have and killed and that obtained not believe .did plaintiff may be illegitimate, was construed to the effect that Moll mentally was'subject was afraid Pollack that he to so of his dominion. relation, never-shifting there- was a Because bur confidential establish, to will. den proof of defendants that the executed though influence, freely without such even the burden of evi plaintiff may upon proof dence be said to that Pollack shift to fol suggestions plaintiff for, lowed the and orders when adduced tending unduly used, to as was show an influence evidence done jury. an arose for the determination of case, this issue of fact submitting question court did The trial err not S. W. Fowler, (2d) 707; influence. v. v. undue [Fowler Morris reported.] 26,414, No. Morris, yet contend to develop IY. further fails Defendants record that Their, grounded position hypothesis .on evidence fraud. .the conclusively shows that Moll did not record rely grandson npon of Pollack that the statement il- legitimate. suport position, refer To their defendants to the testi- Moll had no mony Maud Harden that doubt that was his Fred Moll, who grandson; that of said Alice she child believed thought so, too; King Fred to that legitimate, and Uncle witnesses farm, St. Clair who heard employees Moll on the testa- Dixon, Roy Courtney, who speak grandson; heard Moll of his tor grand- Hickey’s him that was not his Mrs. assertion Fred refer to u'iould out saying Courtney, him, look no matter son, Moll testimony may Pollack, be added the they To said. which what steps take to silence rumors having circulated him relative to of others tended concerning testimony boy’s paternity. to: *16 762 boy spoke of
show that as his grandson, on one occasion Hickey, saying my grandson. “I know that is I Mrs. am sure my grandson,’’ pronouncement that is and to the solemn of the will, grandson. is boy in which the Fred mentioned as his probative has clearly While this evidence force and would have for supported a verdict defendants on the of fraud, issue on the rely ground upon did statements, yet that the testator not there tending is evidence in record to show that false and fraudulent boy’s legitimacy statements as to the were made Pollack to testa- mentally was old and weak, physically, tor. Testator this time subject debility, easy and afflicted senile and therefore the object bounty was grandson, The natural of his his influence. attempt deny legitimacy of whom Pollack does not in this cause. readily developed by inferred from may it be the situation think We given way a would not have to such that Pollack tirade the evidence presence Moll, mother in the as took- plaintiff’s toward of abuse January 1921, unless such facts had been 28, thereto- around place testator, While after he Pol- with the testator. left discussed fore influence, to resent the statements seemed lack’s home grandson legitimacy of his was of the ut- seemingly the Pollack, for supports yet that, an inference him, the evidence concern most influence, under the statements of Pollack and while at the home boy’s legitimacy mind to the as in his as grave doubt a such created making the will. We think the upon them him to act to cause jury. of the issue of fraud to the the submission authorized evidence 1 charge plaintiff’s Instruction on testamen that Y. Defendants petition predicated is because the capacity erroneous, tary by worry brought caused about incapacity mental made Pollack. We false statements fraudulent general as a what is to be construed petition *n ^le find of unsound Moll was mind charge that Frederick say if could that this we making legal will. Even a incapable of by Pollack, statements and false fraudulent general charge refers averment, so, as this is general and, aas construed may it be yet pleader. in favor of the must be resolved interpretation as to all doubt not the instruction does is evident conclusion, it In view!of this pleadings. beyond the extend improper, 2 as Instruction complain plaintiff’s VI. Defendants of evi “preponderance term correctly defining
because, after testb credible weight being greater as dence” all upon á consideration verdict' mony, it authorizes fol instruction This eyidence; otherwise. credible McRuer, v. Naylor found lows in haee the instruction in. verbfi In objector W. 772. that ease the 154 S. failed 465, Mo. l. c. attacking signifies capable it. any “Credible” reason to disclose jury “if satisfied” The words are so refer being believed. weight of credible as greater testimony, used qualify the transposed, it if from that, so reads: “And instruction, in the pre are so evidence satisfied of all the a consideration weight greater of the credible evidence that Frederick ponderance or plain they will find a mind, then verdict for not of sound Moll was pre preceding “satisfied,” refers “so,” word Thus the tiff.” term is defined to mean the evidence, and ponderance *17 The instruction was not credible evidence. weight of the greater erroneous. that 3 is contend Instruction broader than the Defendants
VII. permitted jury to find This instruction that pleadings. disease, age, decrepitude, bodily of testator was from
mind subject or decay, causes, or other cause to the or mental Phillip and control of Pollack. The undue dominion or Avords “other cause causes” are denounced on the ground jury they accept, that afforded the evidence, the chance to by plaintiff May certain hints contained in the cross-examination of Hickey Pollack, to the effect that testator feared because of knowl- edge on part whiskey, Pollack’s that testator had rectified and Pol- question lack had him prosecution. threatened with Federal by plaintiff’s Young, asked counsel was whether she had Mr. told plaintiff, counsel for these matters. The witness denied such permitted question conversation. Defendants to be asked with- objection, decide, out if it was which wte not and, improper, even do resulting unqualifiedly matter, denied the that answer there jury by Avas no such a threat or control Pol- evidence before the jury any lack for that reason. We do not think the Averemisled instruction, context of think Moreover, manner. from the we causes” this connection refer to a the words “other cause or body or mind of the testator. condition weakened part complain 4, V.TII. of Instruction rather Defendants or that reading: you through “And are instructed that whenever weak of it ignorance, dependence implicit reliance, ness. one good of another, faith the latter obtains as an
cendency preent which is used to the former from exercising judgment, an unbiased influence undue charge pleadings exists.” Defendants that make the issue the Pollack, undue influence of and that the instruction does it, permits jury say that, not so if limit but the testator was any by any person Pollack, biased from other than un- influence or 764 By jury
clue . influence obtained. 3 the an Instruction were limited to by 4 undue influence exercised Pollack. Instruction defined and amplified 3, the term influence” as Instruction thus “undue used referring to the Pollack. undue influence of The instructions do not speak any other influence over the testator than that of Pollack. jury fully think 8 We 7.6, aware Instructions wfere they that in- were limited to a consideration of Pollack’s undue merely fluence over testator. Instruction defines undue influence. instructions, think Taken connection the other we do not they fully jury misled, understood that were but that the issue was unduly an influence Pollack over testator used.
IX. Instruction informs the in substance that direct evi- required; may of undue influence that it dence be shown may drawn; proof an from which inference be facts that undue may influence be made evidence of facts from which the inference of the existence such undue influence ma,y naturally reasonably drawn, be you if believe, evidence, any from the fact or facts are proved from which may fairly the inference be reasonably alleged drawn will of Frederick procured by operating upon undue influence, him at the will, alleged time the execution of the said then and in that case *18 jour duty alleg’ed it is such will find that is will not the of said is, Moll. The criticism first, permits leveled the instruction that it jury any the to find undue influence from or fact facts without re quiring facts; compels them to all second, consider the that it them to any find for if is fact from contestant there which undue influence arises; third, jury it limit the and, fails to to the undue influence by What said in preceding para exercised Pollack. we have the graph disposes of criticism as to by the the undue influence exercised artificially drawn, Pollack. While this instruction is we do not prejudicial jury think error. The it constitutes were told effect by they all evidence, to consider the -and if from the instruction it any a fair and found fact from which reasonable inference could by procured operating will undue be drawn that the was influence upon him, they were to find that it was not his will. It then province jury fact, find within determine such the being finding left to their discretion. In advised, if so thereof the say unduly testator was in whether the it was left to them to effect, theory, by the and, was tried on both the evi fluenced, as the cause unduly him, influenced instructions, that Pollack dence the jury not think the were pleadings. We do theory within the misled.
X. places- Instruction 6 proof the burden of toas undue influence defendants, because of the attorney confidential relation of client provides between Pollack and testator. It if that, then Pol- possessed lack great by influence over reason procured that influence making of will, the the
that he and family members large received benefits under will to the exclusion of those naturally en- titled to his bounty, was void for in- undue fluence. The misleading instruction is as it attacked because failed naturally define the term bounty.” “those entitled to his In the by instruction offered given by jury, defendants and to the court expression the same was used. if necessary Even it was to define the expression, which decide, expression we do not the use the same by defining alleged defendants without it invited the error.
XI. Instruction attorney states that the relation and client between by testator and Pollack is admitted pleadings, and that such relations pro are confidential. The instruction then that,
vides if will, acting Pollack drew attorney, as family and that large benefits, received then the law showing casts -on defendants the burden of to the jury reasonable satisfaction that such will was not directly induced coercion or part, fraud on Pollack’s or indirect^ ly. “directly indirectly,” Criticism is directed the words be they permit jury cause too wide a latitude. It is also directed to ‘ ’’ predicated a failure to fraud. is define Further error because jury by- is not limited the instruction to the consideration of a n specific put pleadings. fraudulent act or acts in issue The indirectly” “directly words to dix’ectand circumstantial evi refer or. right determining dence, could consider in both of which the defining, think word “fraud” we do not needs undue influence. The laity. usage, understood' for it a word of common well jury’s consideration- to such sufficiently limited the instruction pleadings. If put there in issue fraudulent act or acts were by defendants’ instruction regard, it was cured in this a defect were did not exercise fraud or if Pollack jury that wlhieh informed *19 find for will. must the testator, they influence over the undue jury that are instructed as follows: “The is Instruction XII. legal adviser, or members favor of one’s in is made a will when family, partial to the total or .ex- his immediate heir, is on burden defend- natural the the elusion of an| by †0 not will was obtained un- that the that no such im to show upon them it devolves influence, due mind of the tes- indirectly over the directly or was exerted fluence tator the time of the execution of we the What instrument.” preceding “directly paragraph have said in the as to the words or indirectly” applicable Furthermore, we is here. what hereto- have regarding question limiting fore said in- the the instruction the fluence, by as to Pol- pleadings, defined the the undue influence of wjhole lack is limited applicable. also The instruction as the un- Pollack, we due the that of which influence exerted over testator to by jury. think fully understood the give complain of the of the court to XIII.Defendants refusal by defining an instruction offered term “undue influence.” them the inwas We need not decide whether this instruction form, by plaintiff Instruction offered proper because ar)Ci fully term. It given court, the defined though proper, where the mat- not error to an instruction even refuse jury by given to the the court. ter is covered an instruction In refusing charge in XIV.Defendants the court erred their though in provides that, H. even substance struction instruction grandson’s reported to Moll words or acts of mother Pollack nature, Fred Moll Was not uncomplimentary an that or chastity concerning grandson, or or statements feelings or morality daughter-in-law, her as to of his or alone, findings, that of such him, his relations to grounds of justify ground a denial of on the will fraud combined; fraud in order to warrant that undue influence against reported alleged verdict or acts will, on words based such in fact did required Pollack to find that he Moll, to were report they must find such in addition words and to acts them to be true that the same and that believed were false when he in their truth and that he relied and on his belief acted take asked, failed to dispute. instruction, made the will This as client attorney and into consideration the confidential relation will, existing preparation of the between Pollack Moll in the on was east influence proof wherein the no undue burden show defendants, destroy presumption tendency was and its fiduciary arising from the the will influence, whs the result of undue attorney preparation in the acting relationship Pollack, as created refusing instruction. this the will. The court did not err testamentary argue issues further XV.Defendants jiiry are capacity ease and undue submitted this influence that, while They maintain inherently inconsistent. trial before to elect courts motions refuse sustain inconsistent ground then so are not that the issues cases practically all warrant yet reported sustention, *20 courts have limited the issues instruction to one or the other theory. We are agree unable to to the contention. The in which cases the courts have refused to submit one or the other issue in are those plaintiff which the failed to adduce support evidence to the issue. Although there authority is some contrary, we see no incon- sistency on principle precedent or submitting in the issues testa- mentary capacity and undue influence to where the facts justify the theories. XVI. Defendants contend admitting that the court erred evi-
dence of purported by testator, statements to have been made rela- making
tive to a will year in January, about a after the will in controversy may was executed. While evi- this not be true, yet denee sufficient to show the w'as it statement made was evidence of the manifestation testator’s mental condition. It may have slight probative been of only, yet value it was admissible for purpose. that 220; Graff, Raalte v. 253 W. v. S. Coldwell [Van Coldwell, 228 W. S. 95.] XVII. Defendants further contend that in re- court erred
fusing permit them to show Moll' cross-examination Alice the effect the breaking of the will legacy be- would have relative queathed her son. This improper, line examination was for the issues did not understanding breaking involve her of the effect of the will.
XVIII. complain Defendants following of the admission of the evidence: ‘‘Q. Shortly after the will was urobated. did vou have talk Pollack, he,
Mr. Pol- which Mr. Pollack stated that prove dope which would lack, had the Mrs. Harden question up. ? That came son Witness: not her was that Freddie you? Yes, sir, A. he did.” “Q. say that to Did he alleged impeach an testimony state- failed to if bit Even this occurring after Pollack, not admissible because ment testator, which we need of the will and death execution evidence to same other decide, merely corroborative of it was prejudicial. plainly not effect, and was therefore plaintiff, for complain attorney that the XIX. Defendants
argument erroneously Nordman that “Miss said said: to the iurv. Hickey Mrs. Pollack tell Mr. heard she assignment This Moll.” of Mr. grandson not the principally, because reasons, many untenable exceptions preserved bul is not of counsel argument *21 alleged because tbe preserved error is not in tbe motion for a new trial. The statement a brief that certain argument occurred does not of itself show that it occurred. XX. complain Defendants of misconduct plaintiff's at the.. of.
torneys during the trial. They up complaint sum by stating their
C0Llnse^ continually repeatedly ques- and asked Hons that irrelevant, counsel not could but know were making incompetent immaterial; the of unfavor slurring evidence; comments on the misquoting the able egg answers; nagging say at witnesses order to them on to or do might disregard something that cause the to their testimony. injecting purpose into being the All this done for the minds of the way questions put to witnesses, the matters that could not jury, give answers; interpreta brought out to distorted properly be witnesses; of the and constructions the answers to bulldoze tions the witnesses. and terrorize alleged in regard misconduct refer to occurrences
Defendants detailing record, pages the which we have witnesses, the twelve every objection instance, one no save where examined, objection as made. On motion made, trial court sustained the assignment presented to the trial of error for a new trial this objections as ruling aguinst defendants. The resulting in a court, court, trial properly sustained and were proper made were immaterial and irrelevant incompetent, for questions called for the during the heat however, happened occurrences, matter. The memory and an oblivious result of and were some extent trial of a The sustention motion Pollack. part of on the equivocal answers a matter part of counsel is on the misconduct a new trial for for resulting we court, trial province peculiarly within the clearly appears. discretion, thereof an abuse unless to its must defer consequently appear, of it does In instance an abuse this rela- situation arose A similar ruling below. made we defer v. Irons jury in the case improper argument to tbe tive to an 283, and' 318, 300 S. W. Co., 318 Mo. Railway Express American determination primarily question it was we there held this that case between distinction There is a of the trial court. obtains, as rule still but presented, situation case as to the be question to primarily a counsel, that it is charge of misconduct not dis- ruling we thereon court, whose trial considered clearly appears. abuse of discretion turb unless an Higbee affirmed. judgment record, Finding error in no Ilenwood, GO., concur. adopted G., is by Davis, foregoing opinion PER C1IRTAM:—The concur. judges All of opinion as the of the court.