*1 1201 al., Appellants, v. D. A. W. et et Odom al. 152 S. (2d)W. 124. Two, Division June 1941.
J, N.' H. Biurroughs, JD. appellants. Green and Paul' Barrett for *4 Scarritt, B. M. E. Pufalü,--A. Herman D. L. Morrow and Hyder, respondents. Landis A.- W.
WESTHUES, alleged last will and C. This is suit to contest Langston, testament of of alL Barsha deceased. At the close uphold- jury evidence the trial return verdict court directed the ing the judgment appealed. will. From entered the contestants
1207 defendants, legal the are heirs of testatrix. The The contestants beneficiary Langston, principal the here, Louise W. respondents are: Langston, deceased, will, Wayne the the who was of S. under wife a only testatrix; Company, the St. Louis Union Trust cor- child of alleged will; named poration, executor the various beneficiaries under in the as will, persons in'the and a number of named will also trustees. alleged the charged plaintiffs’ It that the will re- petition was in was deceased, fraud; Iiolt, influence that Earl Y. sult of undue and now defendants, Langston the and Louise and St. Louis Union the W. were, prior to the execution the Company, Trust at the time and of alleged will, Langston of Barsha the confidential business advisors full and*management property; and were in control of her that each fiduciary stood in a the relationship her; that said Louise W. Langston, by aided and Trust with Company, abetted Holt and the themselves, to enrich intent induced the testatrix to permif them a Company draft will for her. the In the will Holt Trust were and as executors to act without event Holt’s death bond. In the of named Langston Louise W. was to act as co-executor without The bond. designated living trust, agreement, record disclosed that a trust aas 30, 1935, alleged was day executed November the will was same signed. agreement Company In this trust the St. Louis Union Trust Langston and Louise were trustees. Testatrix died on named as 8, April charge 1938. The property trustees took of the soon after 30, 1935, November at and in of the time of trial there was excess $95,000 in the hands of the trustees.
Appellants, as respondents, many points law, well as briefed of but questions the crucial in a the case are: Did the evidence disclose fiduciary relationship to have between the testatrix and existed Louise Langston, W. activity and if so did the evidence further show such part on the Langston of W. causing in execution of give will as would rise to Re presumption a influence? undue spondents contend neither fact could be inferred from the evidence. they say eight But in point fiduciary of their brief that even if a existed, relationship activity part no on the of Louise W. shown,
was
therefore, no
jury.
case was made for a
[They cite
Starke,
v.
131,
332
(2d) 772;
Loehr
Mo.
56 S.
Chapman,
W.
Pulitzer v.
298,
337
85
(2d) 400;
Mo.
S. W.
Rex v.
Missouri,
Masonic Home of
the evidence Y. Langston, Earl Holt' and Louise W. testatrix and exist between *7 in them for advice business Company. looked to the Trust Testatrix .will by of the proponents the The introduced matters. evidence the-son, who relationship. It was that a conceded tended to show such 1935, -affairs. He August, in looked after testatrix’ business died depart evidently he soon to foresaw that was in ill health and was urged her in which he to He wrote his mother a letter from life. this n he suggested general a of what a outline make new will and also This was thought ought provide for in her will. letter his mother to away. passed had Soon after her son delivered to testatrix evidence to dis- a failed thereafter testatrix did execute will. 1935, the will what that will. On November close became of question in here was executed. testify by to Dressier, alleged will, was called
Ruth a to witness a in at local bank proponents. employed stated that she was She her; the will to cashier; Holt that Holt dictated which Mr. was then and took the will to that she it and she Mr. Holt transcribed signed Langston it in her and presence the testatrix home where presence in the Hawkins the other Mrs. Mrs. of .Hawkins. witness^ a in the employed also she been as nurse testified. She stated that had Langston Langston home that had been an years; for some Mrs. invalid; eighty-five years age at the time the will was that she was of signed. frequent Holt made visits to She further testified that Langston Langston son, Wayne, that Louise died; home after the frequent to the visits; also came the doors made that when Louise room be her evidence: would closed. Note Langston’s immediately making
“Mr. Holt started visits to Mrs. stay He Wayne’s death, quite frequent. after would were they and .long; time quite sometimes, I never did awhile and sometimes so not good many stay him. hour. probably Sometimes he would On would right after Louise occasions the visits of Mr. Holt would be I saw leave; ever that occurred of I don’t believe number times. frequently Louise Mr. there time. Louise would and Holt at same coming down to see call me Mr. was phone over the and tell me Holt Barsha, business and they going were to' talk and she tell me would stay away permitted I not to keep people and to from was there. would be closed and they in room The door when were there. I would go out.” riding pretty in the car Langston
“Louise take Mrs. out would when help help they often. I her in the ear her out would and accompany trips, came on these some- back. I was not allowed them talk This was they times would tell me wanted to business. Wayne died, frequently along right happened all after and from part signed the latter -was instrument AVayne up until this died time November.” of you business, or do taking care her Mr. of “Was Holt alone help- anyone of anyone him. I don’t know helping A.
know of else sign checks attorney only I had ing power him Louise. know she to,write much, Langston very her wasn’t able because Mrs. her I think Langston care her business. couldn’t take own Mrs. in several quite property She had interests were extensive. business things. I bonds, mortgages and other localities, notes and besides things. I know of those care of helping know of Louise her to take she was trip fall, that when going her to St. Louis some time one ’’ that fall. gone days, trip I the one only several remember Smith, that she Wilson, formerly Mary testified Mrs. Truman Miss Wayne’s eight years; after was at the that home for about *8 there; that Louise Langston frequent death W. made visits Louise was her that Mr. Holt many telephoned informed on occasions and anyone let coming her not to disturb to talk and instructed business that witnessed Mr. Holt and the testatrix. Wilson testified she Mrs. here the will shortly Wayne’s a did not witness will after death. She St. question. Jr., representative a of the Gaskill, Mr. John E. with Louise he discussed Company, Louis Union Trust testified that day agreement the same Langston the executed W. the terms of trust necessary that trust signed; the will was to draw that the information Langston. that agreement through Note also Louise W. was obtained agreement. trust Langston Louise trustee in the was named a W.. concerning the suggestions pro- This witness had a number made of not company permitted visions the trust was of will. He testified the interested, and agreements to it draw wills or trust in which was will and trust proposed therefore he sent a the memorandum of what agreement Holt, believed to have were to contain Earl V. whom he to Lang- attorney by been an him Louise who was recommended to and attorney. When may ston. We an state here that Holt was not suggestions Gaskill the he a thereof to Louise copy sent Holt sent to Langston following with the letter: 26, 1935.
“October Langston, “Mrs. Louise W. Plains,
“West
“Missouri Langston:
“Dear Mrs. having given thought “After that should plans considerable to the suggested be that Langston in the A. we believe case of Barsha Mrs. following proper carry the is a affairs to out her distribution for her get a mini- purposes intentions and at time all costs at and the same mum.
‘‘ original Holt, of these sent Mr. documents have been to E. V. attorney, may the that he so the documents. draft
“Very truly yours, “(G) Gaskill, E. Jr. “John “JEG:AM” agreement
No letter copies proposed or of the will and were trust sent to the dealings company testatrix. All the with trust had the through trips testatrix were Langston. Louise made W. She two to St. Louis this purpose. company with She furnished the trust necessary the information, such the the of as names of relatives testatrix a property and list of the her. Ilolt was insolvent by owned at time the it is doubtful whether this fact known the was Langston 13, 1935, testatrix. letter, Louise wrote a dated November company defendant trust with inquiry in which she made reference to the charged by amount be and the of fees to the trustees executors, stating that the fees mentioned in these were documents thought not what she they be, evidencing would she had that discussed provisions company. of the will with There other the trust was Langston, evidence support theory introduced in of that Louise Holt and the Trust Company testa were business advisers trix. We are opinion justify of the that evidence was sufficient to a finding that fiduciary relationship existed between testatrix' Langston, and Louise W. the Trust We Company and are Holt. opinion also that the evidence that-1 was sufficient to show had been active in sign testatrix new having will. In following one of her to Mr. Gaskiil letters she made the *9 statement: there, “Again you I please procedures ask to as hasten as much That, practical.
is I get am so anxious all this settled.” letter was dated November 1935.
We want expressing do not to be on opinion understood as whether, question is, merits of the case. The before us under evidence, jury. the trial case court should have submitted the rulings court, Under the supra, of this as found cases cited Banc, especially Starke, by case of v. Loehr the Court en cause jury. judgment should have been submitted to a trial Cooley court is trial. and Bold- reversed the cause remanded for ing, CC-, concur. C., opinion by Westhues, foregoing
PER CURIAM: The is judges adopted opinion as All court. concur.