98 Mo. 433 | Mo. | 1889
— This is a suit to contest the will of William Hauger on the ground that he was not of a
By the will the deceased gave to Mrs. Myers and Mrs. Smith, both married daughters, one dollar each. They and their husbands are the contestants. Two sons and one daughter were non-residents, and to each of them he gave one dollar. He gave to his son William H. the sum of one hundred and fifty dollars. The balance of his personal property he bequeathed to his wife, with power to sell the same; and he devised the real estate, some two hundred acres, to his wife for life, with remainder to the two remaining sons, namely, Andrew D. and Jonathan. These sons resided with their father and carried on the farm under his directions. William H., the older brother, resided in the neighborhood. These three sons, namely, William H., Andrew D. and Jonatlian, and their mother are charged with having procured the will by undue influence.
The deceased was about seventy years of age. The will was executed on Friday, December 5,1884, between ten and eleven o’ clock a. m. ; he died on the following Sunday morning. He received a fall, some two years before his death, from which he did not entirely recover. At the time of executing the will, he suffered from paralysis of the bladder, so that the physicians were obliged to use a catheter. Mr. Myers, one of the subscribing witnesses, knew the deceased for more than twenty years before his death. This witness ■ says : “When he signed the will, I think he was clear minded. I know he had no fever. Mr. Jones was late getting there and Mr. Hauger became uneasy. He said to me: ‘ I have worked hard for what little I have and I intend to do what I please wdth it.’ When the will was read to him he corrected his name. He was a man who would have his own way. He was a firm man. He was sitting up on the bedside when he signed the will. There was no one present in the room when he was
Dr. King, who saw the deceased on the night of the third and again on the evening of the fifth of December, 1884, testified: “I examined him closely on the first visit and again on the second, but not so closely. The last time I saw him he was very feeble. I questioned him and he answered rationally. I considered his mind sound. He was capable of comprehending the-extent and character of his property. He was weaker and sinking. Prom my knowledge of him on the fifth day of December, 1884, I thought him of sound mind, but in his weakened health his mind was not as strong. When I got there he was laboring under the effects of an opiate. He was stronger on the evening of the third than of the fifth.”
The substance of the evidence of the two daughters, who are contestants, is, that they arrived at their father’s house on Thursday; that he did not know them until they had removed their wraps ; that from Thursday night on he was not rational. Mrs. Myers testified : “I knew nothing about a will until I saw Mr. Corn there, then it struck me that that was what he came for. Polk went to the foot of the bed and said, ‘ Pap, you can’t make a will until Tom Jones comes.’ Polk came out and told Dick to go after Mr. Jones. They did not do anything until Mr. Jones got there. I caught Polk, Dick and mother talking together, and I said, ‘ Polk,
The evidence of some of the neighbors, who were in on Thursday and Friday evenings, is that the deceased was then very low, paid no attention to what was going on around him, and was not in a fit condition to transact any business. There is some other evidence to the effect that the two boys desired their father to make a w'ill prior to his last illness, and that he stated to other members of the family that the la.w made a will good enough for him. There is much other evidence in the case, but that given is sufficient to show its scope and character.
The court, at the request of the plaintiffs, gave these instructions:
“ 2. The court instructs the jury that in determining whether undue influence was used to procure the execution of the paper writing offered as the last will of William Hauger, they will take into consideration Ms mental and physical condition at the time of executing it, the will itself and the provisions therein.
“3. The jury are instructed that undue influence, as used in the instructions, means influence of improper kind exerted by the beneficiaries charged in the petition, or either of them, for the purpose of inducing the execution of the will which operated in the mind of Wm. Hauger so as to cause him to make a different disposition of his property than he would have made if free from such influence, and in determining whether such influence was exerted, the jury are to consider all the facts and circumstances in evidence.”
2. But the third instruction cannot stand the test of the law. It is to be observed that the evidence of undue influence is very weak, barely sufficient to call for the submission of the issue. In such a case the instructions defining undue influence should be clear and free from all doubt. To say that undue influence means influence of an improper kind is no definition at all. It must confuse rather than aid the jury. Nor do
3. If William Hanger had sufficient understanding and intelligence to transact his ordinary business affairs, and understood what disposition he was making of his property and to whom he was giving it, then he possessed a disposing mind. Benoist v. Murrin, 58 Mo, 322; Jackson v. Hardin, supra. This is substantially the rule laid down by the court in the instruction given upon this subject. An objection is made to the instruction, but it goes to the form rather than to the substance. The instruction can be readily changed to avoid the objection.
The judgment is reversed and the cause remanded.