*1 404; J.C. Wells v. Surety Company, 194 App. 389, Mo. National 396; Bridge Duerr v. & Co., Ky. Railroad 228.] The ground difference between issuing for a search warrant and arresting suspect for a without a appears warrant in the nature of proceeding. cause, The probable in the case of warrant, a search presented must be judicial to the officer who issues the warrant. The evidence must him, be brought to and it must supported by be oath or affirmation and writing. reduced to prerequisite That is a to the issuance of a search warrant. It ends with the issuance of a warrant may which also authorize an persons. arrest or “seizure” of When an officer arrests a say without warrant one no would lie probable must Lave cause supported oath or affirmation of writing someone go reduced before he can and mate an arrest. The enough criminals is slow without formality. apprehension necessar-ilyjustified He is because he believes an has offense been no.t committed, justified is-always he but if offense in fact has been committed, whether had reason If he to believe it a crime not. committed, justified only has been he then can the existence ground ap- reasonable to believe that it has been committed. As plicable particle, deputy to this case it would not matter when the arrest, ground felony sheriff made the to believe whether reasonable presented not; justified been had committed was to his mind or is ground existed; the crime because reasonable had fact been justification. complete That is a The arrest was there- committed. fore lawful. All judgment is affirmed. concur. al., Appellants. M.
D. W. Patton et et al. v. Oliver (2d) 40 W. 706. S. Two, July 3, 1931.
Division
(cid:127)632
8. S. Reed & Nowlin for appellants. Beard *3 respondents. Boyd, James P. E. L. A. H. Drunert for Alford (Sec. the statute FITZSIMMONS, an action under C. This is Mrs. Nannie validity will of 1929) contest the R. S. *4 Feb- lived and in many years Mrs. Shelton For Shelton, deceased. n County. action Jonesburg, Montgomery The ruary, 1927, died in was the venue there, plaintiffs of begun application but on was by jury The its was had. changed County, where a trial to Warren will and testa- purported was not the last the will found that verdict accordingly. The Judgment was rendered Mrs. Shelton. ment of beneficiary, Shelton, M. the sole by trial filed Oliver motion for a new executor, was overruled and will, named purported and its under the ranges the of estate .value court. The estimated to this appealed plaintiffs The and minor thousand dollars. to fifteen from ten they heirs, Shelton’s sole Mrs. Nannie Ellis, are defendant, Mae Susie brother. Shelton’s being Mrs. of descendants Nannie Shelton. He nephew of Mrs. Patton is*a Edward Plaintiff seventy-five by from Jones- railroad Missouri, Paris, in .miles lives plaintiffs home. The other and burg, Mrs. Nannie Shelton’s grandnieces and Ellis, grandnephews are defendant, Susie Mae minor City, Kansas, all in Garden .and Some live Nannie Shelton. of Mrs. Jonesburg. from a distance of them at Defendant Oliver Shelton was a of half-brother Mrs. Shel- Nannie ton’s husband, Frank Shelton. Oliver Shelton Arkansas, lived in until May, 1926, up about when he took his abode with Sheltons Jonesburg. He returned to times,- Arkansas several but he made fairly permanent home in Jonesburg, especially after the death of his half-brother, Shelton, Frank passed away July 8, .who 1926. It would seem that whatever property Mrs. Nannie Shelton had to dis- pose by of will Shelton, she or Frank inherited received from her husband.
Mrs. August Shelton executed in suit as 7, 1926, said, before she February, Shelton, died in 1927. payment just directed debts, of all her left the remainder of property my her “to (the my brother-in-law half-brother of de- husband)-Oliver ceased appointed M. Shelton.” She Oliver Shelton executor without bond. - charges petition The that Mrs. Shelton, Nannie who was about seventy-six years suit, old at the that- she executed the will time had been many consequence “feeble in health for years, and in body mind;” she was weak and feeble both that de- took, fendant Oliver up Shelton his residence the Shelton home Jonesburg some months before the execution of the will and while Shelton, Frank the husband Nannie Shelton and half-brother Shelton, yet Oliver was alive. petition The further recites: Shelton, “That after the death of the husband of said Nannie deceased, the said Oliver defendant M. Shelton remained in home of the Shelton, invalid, said Nannie who an who was had for many years companion been invalid, an and was her constant nurse, nursing living reason within the home and invalid, the said Nannie M. Shelton while she was the said Oliver gained full complete of the said had confidence Nannie Shelton, complete influence her.” over petition charges further at the time the execution suit, Shelton, deceased,
the will influence, completely Nannie was under Shelton; M. domination and control of defendant memory that she was not of a determined and that her mind mind impaired; had become and was that she had become of unsound mind law, understanding, realizing, meaning incapable within the prop- appreciating making disposition had or of her what she knowing Shelton, affairs; erty and “that Oliver M. defendant deceased, exact condition said Nannie *5 knowing that, time, time, by reason the of his mind at said and at living home, nursing caring her the for her and within and and said Nannie existing himself and the confidential relation between deceased, knowing Shelton, was the said Nannie Shelton and that years, mind, by far in his advanced body weak and in and of said Nannie influence, the mind the request, entreaties over 636 prevailed upon pretended peti- The
Shelton, to make will.” said charged M. tion further “that defendant Oliver Shelton well the existing knowing and the the between himself confidential relation knowing the mind said Nannie Shelton and his influence over of the Shelton in violation of said confidential relation said Nannie existing Oliver M. Shelton and the said Nannie between the said her, Shelton, by words, the said did acts and entreaties towards unduly Shelton, prejudice mind of the said Nannie influence the against plaintiffs Susie these defendant Nannie Shelton the said Ellis,” thereby brought of will. Mae about the execution the by answer, up M. set that the will Shelton, Oliver his Defendant put will Shelton. He in suit was the last and testament of Nannie allegations purported that will was petition the the issue by testamentary his capacity will for of of not her want reason guardian defendant, Susie Mae influence. The of the minor undue allegations petition. Ellis, adopting of filed an answer the the Shelton, trial, proponent At Oliver of the defendant the having jury (Teckenbrock v. opening closing the to the as such 46; Murrin, 209 108 58 Mo. McLaughlin, Mo. S. W. Benoist v. 321) will prima-facie proof of of l. c. first the execution the made Thereby at competency Mrs. the time. and of the Shelton his to the contestants the burden of evidence had been shifted 63 place. [Campbell Carlisle, v. Mo. S. W. in the first 701.] evidence, their and at the close The contestants then introduced right defendant Oliver Shelton to plaintiffs’ the case became fortify prima-facie his case. offer [Harris evidence rebuttal no in rebuttal Mo. But defendant offered Hays, v. evidence 90.] already jury result stated. the went the with the case M. plaintiffs’ case, Shelton defendant At the close demurrer to that in the nature of a the effect offered an instruction writing last and testa- paper produced evidence was the give Shelton, court refused to this ment of Nannie deceased. The instruction. request plaintiffs. gave instructions at the several court Shelton, defendant, burden these instructions shifted
One of proof result of his undue influence. This the will was not the that case, hypothetically applied to the facts of this stated instruction indulged law, in will instruction, presumption of sometimes contests, fiduciary by relation which of the confidential and reason undue influence over her he exercised Shelton bore to find, making jury should so unless the will and greater weight proving overcame this jury such will was satisfaction reasonable evidence undue, part. influence on by coercion or not induced *6 Tbe refused demurrer of given defendant Shelton in- and the struction on impose of undue duty influence review the evidence. This review we shall make under classes or topics of by facts rather than testimony resumes of the of each wit- ness.
1. As to physical Mrs. Shelton’s and mental health and the care of her:
Dr. E. A. Ball Mr. L. G. Wilson witnessed the will of Mrs: Shelton in Jonesburg' August her home evening at on the 1926. testifying After on behalf proponent will, of the Oliver Shel ton, execution, as to its Dr. Ball was about cross-examined her state twenty of health. years She had rheumatism for about and harden ing of years for arteries ten before For she died. a time after unaided, she had become about, rheumatic she was to walk but able canes, soon chair, she had to use and later she had to sit in a wheel when July 8, she desired to move. Her husband died on Mrs. days Shelton took to her bed a few thereafter. She remained passed away bed-ridden until 1927. February, she Her death was questions caused In cancer of the rectum. answer to whether she had a normal mind view' the fact she had cirrhosis of the death, arteries -that she worried'much after her Dr. husband’s ‘‘ Ball answered: She wrasa normal mind so far as her condition was throughout. good concerned Her mind v7as as as it ever wras.” And again: day “I talked vdt.h her the before she died and she talked just her, I as rational as talked since knew7 I she had ever knew they up her from the until On re time were married her death.” brought examination, w'orry direct Di\ Ball w^as “Was asked: her brought or w’as on on account' of loss of disease her husband?” To “I think which he answered: the loss of husband anyone and the condition she was when left alone without to look after her and take care her.” Wilson, George
Mr. L. the second witness testified on as instrument. On behalf of Oliver Shelton execution of the cross-examination he said that after Shelton became bed-ridden’ he, death, Wilson, Mr. following her husband’s visited her “most time, sitting every day.” most Oliver Shelton was at there give foot would her the medicine and fetch her of the bed. He drinking water. Patton, principal con- nephew Mrs. Shelton and the Edward
testant, Jonesburg Frank he went to at the time of testified that days July, 1926. remained a few and returned Shelton’s death He Paris, some w’ork to do. He said that his home as had eighteen years; twenty for that she aunt had had rheumatism canes; chair, a wdieel that later she used walked with the aid stayed early In she in bed. months husband’s death that after her continuously Shelton, Oliver Shelton was Frank after the death taking giving intimate her, with Mrs. her the care helplessly sick. which fall to the lot of those who wait aids ‘‘ long ? how yon stay A. See Patton how Ed was asked: And would feeling getting along some she was and she tell me she would your work and come busy working, I ‘Go do better and as was *7 ” you if to see me can.’ of the Heeds, Jonesburg, E. testified on behalf John a banker at They kept neighbor their plaintiffs. He was Sheltons. a private and was money affairs bank, in his and he attended to their for several Frank Frank Shelton administrator Shelton’s estate. uptown.” years afflicted and “had not been before his death had been office, opened post Mr. their mail to from the Reeds carried them quite them, wrote their letters for and often he read letters to every night morning. Oliver Shel- He their home them. was at May, writing after to Jonesburg 1926, in trip ton made his to first inquiry get as to how to there. his half-brother a letter of George Wilson, L. to the called on behalf one of the witnesses defendant, Oliver had said he never Shelton, Oliver testified that Oliver, Shelton, he, Frank until arrived half-brother, had seen Arkansas; Mo., that a fortune-teller Jonesburg, at from his home property worth Oliver, the Sheltons had him, in Arkansas told very not live $10,000; sick and would about that both of them were receiving report from fortune- he, Oliver, this long, upon them.” Mr. Reeds (to Jonesburg) see about up to teller “came here stayed week, at the time of his about testified that Oliver further Arkansas. Of this May, first and then returned to visit Shelton, Jonesburg, Ed Patton testified first short visit of Oliver to chim- to him. The Shelton incident which Oliver had narrated to an lightning. his half-brother ney Oliver asked had been struck Frank answered the affirmative. Frank if his house was insured and agent of his insurance proposed that Frank tell him the name Oliver damages. Frank, half- he, Oliver, put in a claim for would taking you authority; “I much if brother, responded: are too think go go grip to, you your on.” you home had better take have a to again in Arkansas. But he was Jones- he left for Oliver cried and days arriving Frank Shelton’s burg a few before July, Mrs. Nannie Mr. death, response to letter from Reeds Shelton. plaintiffs for the identified two letters Another witness presumed. asking defendant, him come. Mr. to Reeds Shelton to the from Mrs. Shelton, death Frank of the that at about the time testified that Mrs. Shelton wanted Mr. to Mr. Reeds Reeds informed Shelton Warrenton, named Mrs. Bomar go hire a woman to wait to Oliver Shelton went on this mission. Of this Mr. Reeds her. topic. may another But it journey will be said under more added nurse for Mrs. hired and became a Shelton. Mrs. Bomar was here that stayed appear. Oliver Shelton with long remained does she How Mrs. Shelton after her August husband’s in July, 1926, death until early when, September, Mr. Reeds testified, Oliver Shelton returned to Arkansas and remained until after the November election. He Jonesburg then stayed returned until the death of Mrs. Shel- February, ton 1927. Mr. Reeds also testified that Oliver Shelton Mrs. Shelton, waited on up went purchases town to make for her ran errands for Mr. her. Reeds attended the fires for Airs. during Shelton Oliver’s absence in September Arkansas in Oc- tober. neighbor
Mrs. A. Wilson, Skeltons, Cora testifying be- half of the plaintiffs, substantially story told the same Ball as Dr. years suffering Shelton, aggravation of Mrs. and of the helplessness her ailments and husband, after death of Frank Shelton. Of the lady’s care of and of old own expectations Mrs. Wilson testified:
“I asked her before going husband died what do, she was very that her getting husband was old, I said: ‘Mrs. you
I you alone;’ reckon realize going are to be left said, she ‘Yes.’ *8 ‘Well,’ I said, you do;’ says, ‘What will going she ‘I am get to Ed Patton and his wife get to come and said, you live with me.’ I ‘Can along wife;’ says, with his ‘I days she can.’ was That about two Frank before Shelton died. Ed was at Frank Patton there Shelton’s funeral, day and remained a or two I after the funeral. know don’t T that ever talked to her about Ed Patton other than the conversation I spoke waiting of. I M. upon her; have seen Oliver Shelton wait- ing giving on her in a call of nature and her medicine. After Oliver AT.Shelton was there he did most the chores place, about the and groceries things kind; always went after of that Mr. Reeds’ folks out, doing girl helping something, and little ones.” their different banker, Reeds, C. testifying Mrs. John of the wife on behalf of husband, plaintiffs, Shelton, said that after the death of the Frank give she saw defendant Oliver Shelton Mrs. Nannie medi- Shelton water, answering drinking cine and aid the afflicted woman in always a call of nature. Mrs. Reeds said that Mrs. Shelton seemed wishy-washy a sensible not a woman. to be Morgan’s Shelton of Mrs.
ATrs.Nannie was a cousin Carrie father. Morgan plaintiffs,' testifying Mrs. on behalf of said that Oliver Shel- get groceries, bring in the for Frank ton would ice Shelton when he carry give sick, the water. She saw' him was Shelton medi- and turn her in bed. cine making Tn time,
2. the the will: order of Of Mrs. Shel- a ton’s will was mentioned in first conversation between John E. Reeds, Slxeltons, the banker adviser defendant Oliver v'ay Jonesburg from to on their Warrenton to hire Mrs. stay her, Bomar wfith Mrs. Shelton and to nurse as has been July, following mentioned. That "was the -week death Shelton, of Frank husband of Mrs. Shelton and Nannie' the half-brother of the defendant. conversation on road Warrenton, as Reeds, testified Mr. was as follows:
“Q. you any coming Did have with him conversation down that day Yes; thing well, reference a will? A. I think the first he to; asked me about what Mr. estate I Shelton’s would amount told really him I I know, any that didn’t that had never made estimate looking says, it. ‘You He have been after his business for some- time; you idea;’ ‘Possibly so; imagine says, have some I I it would run around remarked, ten thousand dollars.’ ‘Well’ he ‘that was said, what the fortune somewhere from to fifteen teller had ten ’ thousand. “Q. just said, any just’tell Now, conclusions, tell he it. what my Well, A. a will he me influence with her to asked to use make T any and remarked that didn’t think she was condition to make woman, thought, a will. At I pretty that was a sick time she says: me, you he if she was to asked ‘Don’t understand that die he nephew get says: probably I ‘He now estate?’ would would,’ her, I said, he ‘I take care of but can come here and might says, nothing,’ ‘It be worth cannot afford to do it for and he your getting says, ‘No, a will.’ 1 while her to make to assist me any I don’t I is in condition to make a don’t think she That was there party anything of that kind.’ about all care to be was to that.” Hughes, testimony of Mr. W. C. of the will in
We next hear attorneys City. Hughes was lawyer Montgomery Mr. one beneficiary Mr. and executor. for defendant defendant, Hughes trial, in behalf of but part took plaintiffs. Outside the record it is a matter witness called as a Hughes judge Eleventh Judicial knowledge Mr. is now County in *9 Court of Warren Circuit, includes Circuit Hughes Judge testified that Oliver Shelton tried. which this case was Montgomery City that Mrs. in and said him his Office visited at Judge Shelton, Frank had sent for' widow of Nannie Hughes Judge Hughes Jonesburg will.” come to write her “to to go time Jones- very busy did not have to to he was stated that necessary.' Hughes Judge absolutely further tes- burg was unless it : tified in her will. He knew she wanted told what him if
“I asked I make a will to him. then desired to he told me she did, and heme very will it would short save hex- be a that would him that told day my a half to leaving officefor for me as save me as well expense if it did not suit her for her and her it to will and send draft the I call, would come. him Under phone, or have me over the to call him will, gave it and he prepared the left.” I circumstances those Returning testimony to tbe Ball, of Dr. family physician, tbe will, a witness to tbe someone, did wbo, telephoned not know him to come tbe residence of Mrs. Shelton. in She was bed and Mr. Wilson, the other witness, sitting reading was beside her her will. Either Mr. Wilson or Mrs. Shelton they said to the Doctor “that ’’ called me down there to attest her will. The Doctor further testified: “Q. What was next said! A. Why proceeded we prop her up pen bed and she took signed and ink and it, I asked her if she knew what'she was signing she said she did. “Q. was What that? A. I asked her if she knew what that was and she will, said it was her her last will. “Q. you What caused to ask Well, just that? A. I it simply did to see and know. To see whether she knew what it was. ‘ ‘ Q. you What were testing' just ? her for A. I wanted to know if she knew what signing, she was and she said it was will.” Dr. Ball signed and Mr. Wilson the will after Mrs. had Shelton signed it. George Mr. Wilson, L. the second witness to the in his testi
mony trial, at the said that Oliver him Shelton called to Mrs. Shel night ton’s home that the will was executed. He not know did why called, he had been passed but when he the house entered on to the lay sick, pro room which Mrs. produced Shelton she posed will and said him Dr. that she desired to witness it. Ball signed arrived. Mrs. Shelton the will Mr. Dr. Wilson and Ball signed it as present witnesses. Shelton was not room Oliver when the will Dr. Ball was executed. testified that when he arrived Shelton met him in, at the door of the house and let him Shelton but night. did not enter. Mr. Wilson Oliver did see Shelton that that, Mr. Wilson testified after the death of Mrs. Shelton and when being Reed, threatened, a will contest was Shelton and Mr. suit lawyers, Mr. one of his visited Wilson. The latter did not-recollect point Oliver conference, all that was said at the but at one right, every I in the room and heard said: “That’s because was other testimony Hughes as a witness Judge was said.” in his word that question disposition tells further plaintiffs for in answer to a n '"1 ! ! will: “Well, my me what officehe asked at the time Mr. Shelton was just it, I told him to leave with the after executed to do she give any- me, it or leave it with found or any place it could be my my office, ; if she desired to out safe pointed I one and my safe; put two or three weeks it in some me I would it to send brought me, placed back or mailed back to will was later the until I after Shelton’s the last saw it my safe, and that *10 ’’ death. 1926, 7, August Patton, and Edward executed The will was the contestant, that defendant Oliver testified principal Shelton, some- amade Shelton had will Mrs. bim that informed September, time in absent in Arkansas was Shelton’s, favor. his, months, Ed Patton visited during October, those
.September anything he never said weeks, but every two or three his aunt (Oliver Shelton’s) favor.” why that she made “about testimony bear- essential contains all the foregoing statement influence. capacity and undue ing testamentary questions on the of question the testa given I. on the No instruction was or asked pred mentary capacity of instructions were Plaintiffs’ Shelton. theory Oliver Shel upon influence of icated alone the the undue other- any evidence, substantial or ton. There is not in the case was not of prove Mrs. Shelton tending that wise> If under the disposing memory. sound and mind asked an case, Shelton had facts in defendant this testamentary jury the withdrawing from the issue instruction give it. And duty of the court to capacitjq it would have been the jury clear the made more such an instruction have would alone, plain issue only influence, the issue was undue 292 S. W. jury. Barlow, Mo. tiffs v. went to the [Bushman 1030; Meyers (Mo. Sup.), (2d) 116, 24 W. l. c. v. S. Drake there cases cited.] IT. motion a new Appellant, in his for trial contended urges given here that trial should have the de- court plaintiffs’ also case, asked which was muner, at the close of that the should not close whole He also insists court case. in- given presumption of undue plaintiffs’ have instruction ^-'aence- as did not Inasmuch defendant Shelton see plaintiffs’ any proof At at the close of case to offer prima-facie and in of his rebuttal fortification own case, if' it should follow that rule undue applies, properly influence demurrer overruled. thus It appears overruling correctness of the order propriety demurrer upon, part in presumption. the application at least turns -: III. Although the up “paper make an issue whether pleadings writing purporting be the last will and testament of the said Nannie Shelton deceased is her such issues are not,” although last will or juries, may triable before courts trial in Missouri n
say there is whether substantial to sustain evidence testamentary issue of want capacity, or of undue influence or of fraud conspiracy procure- in the ment of the execution a will in suit. And so may saying way courts a verdict our direct one
643 testimony the nneontradicted raised based on tbe issue other on respects proof of the issue. In these contests absence of McLaughlin, ordinary actions at law. v. are but [Teckenbrock 46; 213, Catron, 209 Mo. 108 S. W. McFadin v. 138 Mo. l. 533, c. 771; 129, 227, 932, Story Story, 38 S. W. 39 S. W. v. 188 Mo. l. c. 225; Blossom, 207 105 177, 86 S. W. Bradford v. Mo. W. S. 289.] passing judgment In the action the trial court in over ruling give plain the demurrer this case this court should every jury tiffs “the inference benefit which fair-minded .ordinary might legitimately intelligence draw from the evidence.” citing v. al., 916, et al. Barlow 316 292 1039, et Mo. S. W. [Bushman 525, Van v. 299 Graff, 220; Raalte Mo. l. 253 c. S. W. Burton v. Holman, 70, Whittlesey 288 Mo. 231 633; (Mo. S. W. l. Gerding c. v. 246 Sup.), 311; (Mo. W. S. l. c. Larkin App.), Ard v. 278 S. W. plaintiffs’ But the evidence we must believe in 1068.] rul ing the give demurrer must be -of proof a nature substantial their contentions. “Forced and flowing violent inferences not from interpretation reasonable facts shown the is demurrant required not al., supra; admit.” al. v. et Barlow et [Bushman Williams v. Railroad, 257 l. 112, 788, Mo. c. 165 W. 52 L. R. A. S. (N. S.) 443; Van Graff, 297 253 526, Raalte v. Mo. l. c. S. W. 220.] by parity And application the question of the reasoning, presumption of undue influence should be determined within the like latitudes .and under same limitations. By IV. undue influence is meant influence restrains, con
trols, directs and diverts or coerces overcomes and confuses judgment mind and the of one making a will. v. [Bushman Barlow, supra; Hayes v. 242 Hayes, 155, Mo. 145 S. W. 1155; 48; Winn v. 217 Mo. 117 S. W. Nook Grier 420 233; 289 Zuck, 24, v. Mo. S. W. 233 McLaughlin, Teckenbrock v. 46;
209
533,
Myers
108 S. W.
Mo.
v. Hauger,
433,
98 Mo.
11 S. W.
974; Doherty Gilmore,
v.
136
37
414,
Mo.
W. 1127;
S.
Schierbaum
Schemme,
1,
v.
157
526;
Mo.
57 S. W.
v. Kamp,
Tibbe
154
l. c.
Mo.
579,
879,
440;
54 S. W.
55 S. W.
v. Carpenter,
465,
Wood
166 Mo.
66
172;
S. W.
Crowson,
Crowson v.
V. foregoing Measured standards, the demurrer, if it were judged apart from to be of undue influence, should this ease- ft is tone that in undue
fluence need not and indeed in most cases it cannot be shown direct evidence. may Therefore it be proved proved and often it is indirectly by inference from other McLaughlin, v. in Teckenbrock case. said in the But as facts W. 51: 108 S. l. c. Mo. n or mere influence, opportunity to mere
“It must rest on influence it- undue proof suspicion. There be must somewhere effective, ought presumptively. either in To be self fact or at the time destroy agency free the deceased sufficient to *12 of influence natural making merely will. not be of affection; the It must the all presumably flows at for affection is a stream law. There ban known to the its are no times and waters under suasion, per coercion or present, in active exercise over must be and the of the force, deception, breaking power or will testator.” fraud or are in either evidence inferences There this case direct “by reasonably his re- drawn evidence that Oliver Shelton from said Nannie quest, over entreaties influence the mind and suit, upon will'in or that prevailed her to make” the unduly by words, entreaties influence “did acts and towards plaintiffs against the prejudice and the mind” of Nannie Shelton quite the minor Mae it is clear that and defendant Susie Ellis. But court the with the aid alone pass trial demurrer the did not seen with light inferences of and its reasonable the evidence Instead, eye naked as reviewed the whole the it were. the court through telescope periscope the the properly perhaps case or more presumption the of out of confidential arising undue influence fiduciary and between and defendant Shelton. relations testatrix applying And if the court in in the ivas warranted this ease judicial eye ruled the demurrer periscope presumption, the the whether in this Let us then consider the lies rightly. case. firmly
VI. The when, in Missouri that in doctrine is established statutory a validity action will in equit- contest the of a or conveyance, fiduciary able suit to set aside a confidential and a relation shown beneficiary is the to exist between testator the under the. grantor grantee deed, or between the the a presumption of undue influence the arises and burden shifts proponent of grantee or to the the deed to over- come 121, presumption. v. 154 Cornet, 248 Mo. W. S. [Cornet cited; (Mo.
and cases Hershey Sup.), there v. Horton S. W. (2d) question But the when and under what 801.] circumstances presumption may rightfully justly invoked is hard to answer in most Hershey (supra) cases. As is said in v. Horton “it is if not impossible any difficult to deduce hard-and-fast rule from the decided cases.” general What is the of facts rela- nature parties govern application tions the presumption? The essence the confidential relation is fiduciary its character, Corpus Juris, pages 1118, of which we read in 25 1119, 1120: RELATION.—a. “FIDUCIARY In General. It is difficult to ‘fiduciary define term relation;’ very it is a broad one. arises, which, wrong
“b. When It Exists. It is a relation in if a remedy against wrongdoer the same exists on behalf of the principal against exist on behalf as would trustee cestui que may great variety trust. relation under exist of cir- cumstances; it special exists all cases where there has been a reposed in equity confidence good one who in is conscience good faith, bound to act in regard and with due to the interests of the one reposing trust, the confidence. It arises wherever a integrity temporary, specially reposed continuous or is skill and another, property pecuniary or the interest, or the whole or in a or part, bodily custody person placed is one of another. equity any Courts of have refused to set bounds charge to the fiduciary circumstances may spring. out of which a relation only It not all legal attorney includes relations, such as client, broker principal, administrator, heir, executor legatee, or devisee, guardian principal, ward, factor and husband and wife, partners, principal agent, que trust, trustee and cestui *13 every possible but it extends to in which fiduciary case a relation exists in reposed fact and in which there is confidence on one side resulting domination However, and influence on the other. every is not attorney, priest, quia guardian, nominee, or eo who is to be adjudged fiduciary a party hold relation with regard particular a subject; in some relations there must exist other, confidence of the together one with conditions ex- tending may to the one an advantage other, over the and this be superior reason of the intelligence of the one over the other superior knowledge- or a of the facts in a involved business trans- action. necessary It is not that the relation and duties involved legal; they be may social, moral, merely per- domestic, either or sonal. origin The of the confidence the source of the influence are immaterial.”
Pomeroy in (3 Equity Jurisprudence Ed.) 2, on treatise vol. 956, general secs. 1147, 1148, principle in broad states the the same terms, and concludes: equity carefully “Courts of refrained have from defining particular fiduciary instances of relations such might a perhaps manner that other and new cases be excluded.
It is settled overwhelming authority prin an weight of that the ciple every extends to possible fiduciary case in which relation fact, exists as a reposed in which there confidence on one side is. and the resulting superiority and influence the other.” The presumption equitable remedy, under is an discussion it is to be according used or not And to the facts in each case. true,
this is equity whether it conveyenee, be a suit in to set aside a or a statutory is validity action to contest the of a will. one
646 sitting tbe
tried before court a chancellor and the other before as court, jury part. which the is an essential But either case the trial court must determine as a matter of law whether applies.
But, although
cases,
hastily
if
given
Missouri
or
scanned
reading, may present
surface
apparent
inconsistency, but
elasticity
they
arises out of the
itself,
of the rule
reflect certain
fairly Arm
application
rejection
standards
for the
pre
sumption
given
of undue influence in a
Among
case.
the cases which
show when
applied
equitable
Missouri courts have
doctrine
of the assumption
influence,
consequent
of undue
with the
shift of
proof
they
burden of
and when
have refused
make such
application,
following: Dingman
are the
141
Romine,
466,
v.
Mo.
42
1087;
S. W.
(Mo. Sup.),
95;
Coldwell v.
228
Coldwell
S. W.
Blossom,
Bradford v.
110,
721;
177,
190 Mo.
88
207
Ib.,
S. W.
Mo.
105
289;
S. W.
508,
Jones
218
117
Thomas,
1177;
v.
Mo.
S. W.
402,
Higgins,
Cook v.
290
807;
235 W.
Bartlett,
Mo.
S.
Roberts v.
190
680,
Mo.
858; Gay
89
Gillilan,
250,
S. W.
v.
92 Mo.
Respondents when influence, fiduciary undue relation assumes fidential or in- undue presumption of given instruction on they the drafted part instruction reads: hypothetical fluence. The you and find from jury that if believe "The instructs the court making of the in at the the cause that time the evidence paper ton, deceased, of Nannie Shel- purporting last will testament the M. defendant, Shelton, was no blood the Oliver that cause, to- Shelton; plaintiffs this relation Nannie that the nephews and Ellis, Mae were with Susie gether the defendant de- grandnieces Nannie of the said grandnephews that evidence the cause ceased; you and if further find from the making of prior for time to the M. Shelton had some the said Oliver Nannie living in home of the said purported will -been said Shelton, years deceased, Shelton had for the said Nannie walk; and that the crippled unable to sick, been afflicted and Nannie the said M. control of the home of said Oliver Shelton took pur- alone, business with her transacted her Shelton and lived home, was chasing groceries attending to the nursing implicit had con- her, Nannie Shelton caring for and that the said you find that Shelton; if further in the said Oliver M. fidence pur- beneficiary under said Oliver M. Shelton was the sole said appointed thereof ported will and in executor addition thereto bond; that he had taken requested required give not to be pre- writing part causing paper said to be active and about aiding in the employing or em- pared execution, its such as and in therefor, will, securing witnesses ployment of the draftsman of said purported is the result of presumes then the law that said said M. over part influence on of said undue Nannie Shelton.” respects gives a forced and
In several the instruction somewhat facts, hypothesized as for instance in the violent inference to the home, in the matter of matter of the control of Mrs. Shelton’s transacting purchasing groceries.” But defend- “in her business assign- court below and his Shelton’s motion for a new trial ant proposi- ments of error here case to stand or fall cause the in- given tion that the demurrer have been should have struction undue influence should not any fundamentally given form, being been erroneous.
In circumstances, this case trivial in themselves stand there are *15 alone, verity which, together power in all of taken their ing application warrant tlie to
influence, seem are meaning these facts The truth and adverse influence. undue Shelton to ^y any proof defendant °®se^ right to rebut the case of He waived his contrary. might put although by proof his have plaintiffs, he prima-facie ease flight presumption. He rested minds rested, And there were instance. when so the first fortune-seeking visit to jury Jones- the facts his of the court fortune-teller; with a his conversation burg, the visions of aided Shelton said to the adviser Mr. Reeds which friend me in his “to assist might that it be worth while afflicted woman Judge Hughes’ will,” visit to make and Shelton’s getting her to a (2d) Stelzer, 19 S. W. in Knadler v. true, It is as said office. lawyer’s journey by messenger a concerning l. c. a like a significance can be particular man “no for an afflicted office case, the testi But the instant circumstances.” attached these Hughes Shelton knew what mony Judge shows that defendant information in her will desired Mrs. wanted and that she These with the will after it was executed. as to what she should do that Oliver Shelton had discussed with facts disclose him, making will, its terms and its or she with the wisdom of custody. place Obviously with her about he had conference rejected in her will after Mr. had Shelton’s Reeds sug-gestion making his, Shelton’s, a will in favor. And unlike fluence her other we have not the present, cases which these activities were explanation. benefit He when of Oliver Shelton’s version or rested fortify prima-facie the demurrer was overruled. did not case. He judgment Cooley Finding prejudicial error, is affirmed. no ~Westimes,CC., concur. is foregoing opinion by FitzsimmoNS, 0., PER CURIAM: The opinion judges adopted court. All of the concur. -as the Enameling Stamping City v. Company, Appellant, National & (2d) S. W. 593.
St. Louis. Two, July 3, Division 1931.