144 Mo. 354 | Mo. | 1898
Mrs. E. A. Shootman died in Mexico, Missouri, in February, 1895, at the age of
I. The petition counts upon two grounds to set aside the will. First, that Mrs. Shootman was not of sound mind and memory; second, that the will was procured by undue influence of her daughters Mrs. Tyrrell and Mrs. Sherwood and their husbands, and particularly of C. 0. Sherwood, the husband of Mrs. Sherwood.
The evidence on the part of the defendants was abundant to show that Mrs. Shootman had been a very energetic business woman and by her thrift, industry and economy had accumulated about $12,000 worth of property over and above the support of herself and children, and was fully competent to manage her affairs and dispose of the estate by her will. Mr. Kennan, the attorney who drew the document, testified he had known Mrs. Shootman for twenty-six years; had resided in Mexico, the city in which she lived, during all that time; that she was a fine business woman and of excellent mind, a determined and positive character, and careful in her business matters; had often done business for her. He detailed the circumstances
Plaintiffs called three physicians and propounded to them the following hypothetical question:
“Q. I will submit to you, Doctor, a hypothetical question: Suppose that a woman had been an active business woman and engaged, we will say, in the millinery business, and had been engaged in that from 1865, when she was a woman possibly forty-five years of age, and continued in that business, led an
Again it was considered evidence of insanity that Mrs. Shootman in her old age delighted to recall the recollections of her childhood and young womanhood in Salem, Virginia. It was said the constant repetition of those events in her life was evidence of an unsound mind. To one who never lived in the “Old Dominion” prior to the late war between the States, the fondness with which all Virginians dwell upon those halcyon days, sweetened with an unrivaled hospitality, this tendency to recall again and again the memories of that period may seem unnatural, but to those who knew Virginia at that time even as casual sojourners, instead of being evidence of weakness, it would excite suspicion should a Virginian neglect for any considerable time to recount the glories and delights of that period. Indeed it can be said that such was the spell of that life that all who came within its influence became intoxicated with its charms and ever afterward dwelt with loving reiteration upon its refinement. We are unwilling to believe that any considerable number of the most advanced neurologists would see in this amiable disposition to linger over the memories of youth and home, the most remote evidence of unsoundness of mind. Certain it is that the courts of this land reject it as evidence of incapacity to make a will. We shall not adopt a rule which would practically debar nine tenths of the people who have passed the meridian of life of the privilege of disposing of their property by will. Neither is the fact that Mrs. Shootman did not have the same feeling for some of her children in her later days that she had when they were younger of itself and without qualification any evidence of
II. We are thus brought to the consideration of the evidence offered to prove that the defendants procured the will to be made as it was, by undue influence exercised over Mrs. Shootman, prejudicing her mind against her daughter Mrs. Showers. In this State the rule is established that such influence must be such as amounts to over-persuasion, coercion or force, destroying the free agency and will power of the testator. It must not be merely the influence of affection or attachment nor the desire of gratifying the wishes of one beloved and trusted by the testator. Jackson v. Hardin, 83 Mo. 185; McFadin v. Catron, 138 Mo. 197. It is not sufficient that one may have influence over the testator but it must be shown that influence was unduly or unjustly exercised. Brinkman v. Rueggesick, 71 Mo. 553. Nor will the mere existence of a motive and an opportunity to exert undue influence suffice. The burden is on the party asserting it to prove that a will is the result of undue influence. Carl v. Gabel, 120 Mo. 283; McFadin v. Catron, 138 Mo. 197, and cases cited.
Now in this case there is not a scintilla of evidence that either Mrs. Tyrrell or Mrs. Sherwood exercised the slightest influence over their mother in procuring the will to be made as it was. They were living with their families in St. Louis and Columbia and no witness testified to a word or act of theirs which could be tortured into an effort to dominate the mind of their mother or prejudice her against their sisters. The charge of undue influence must rest entirely upon the
“No. 8. The court instructs the jury that the undue influence as used in these instructions is when the mind of the testatrix has been overpowered and subjected to the will of another, and if you shall believe from the evidence in the case that the said Mrs. Shootman at the time of the making of the will in question was weak minded, and some other person by artful and cunning contrivances or by flattery or by any pressure of whatever character overcame her own volition and caused her to make the will in question, then there was such an undue influence as will invalidate the will in dispute; and you are further instructed that such undue influence is not measured by degree or extent, but that it is sufficient to invalidate the will however slight.”
As already said the constraint, or fraud, or undue influence necessary to set aside a will must be a present restraint, fraud or undue influence operating upon the testator’s mind so as to destroy his or her free agency and substitute for his or her own another person’s will. To tell a jury that “such undue influence is not measured by degree or extent but is sufficient to invalidate the will however slight,” is exceedingly misleading and erroneous. In the form given, a jury might
The result reached by the jury can only be reconciled with the theory of this clause, and the court’s action in sustaining it is- evidently referable to this view of the law, because we think that there was no substantial evidence that the will was the result of undue influence by either Mr. or Mrs. Sherwood or Mrs. Tyrrell.
Upon the evidence we think the circuit court should have sustained a demurrer to the evidence, and refused the instruction number 8 given at the instance of defendant, and for these errors the judgment is reversed and the cause remanded with directions to the circuit court to proceed in accordance with the views herein expressed.