190 Mo. 680 | Mo. | 1905
This is an appeal from the circuit court of Buchanan county confirming the last will and testament of John B, Howell late of said county. The
On the trial the defendants introduced the two subscribing witnesses, William E. Graves and Leon At-water who testified to the mental capacity of the testator, and then rested.
It is and was admitted in the pleadings that Herschel Bartlett was named as executor in said will and that he qualified as such and was in charge of the estate of John B. Howell at the date of the trial; that he is one of the trustees of the Hoagland Endowment Fund, and that the said fund is vested in trustees, the income of which is to be paid over to the Ladies’ Union Benevolent Association to be used for the support and maintenance of infirm and indigent old people, men and women, residents of Buchanan county, Missouri. It also appears that Bartlett Brothers handled the old gentleman’s money and invested it for him. The testimony tended to show a close confidential relation between the old gentleman and the Bartlett firm, and he made them executors without bond.
Thereupon the plaintiffs introduced evidence showing that they were the natural heirs of the said John B. Howell, deceased, according to the Statute of Descents and Distribution in this .State, and that John B. Howell, up to a period of about fifteen years before he died, had been a man of good health and strong physique, of strong mental powers and a successful business man, and had amassed a fortune of from thirty to fifty thousand dollars; he was very neat, tidy and a good dresser, and had always provided for himself and those about him, liberally and bountifully; that he had been affectionate and kind towards his various relatives, especially the plaintiffs herein, who were the daughters of his half-brother; that Henry Landrum, a son of his half-brother, who was at the time of the execution of said will, and had been for many years prior thereto, an epileptic, and unable to care for himself, entirely destitute, and an object of charity among his relatives, was omitted from and not mentioned in any provision of said will. Plaintiff’s evidence further tended to prove that they were people in the humbler
On the part of the defendants, however, it was insisted, notwithstanding the foregoing evidence, that Mr. Howell had sufficient mental’capacity to make a will, and they point to the fact that when Levin Howell died at the residence of the testator, he had on his person at the time of his death $3,613, which the old gentleman directed to he deposited in his own name before Levin was buried. Another fact was that while Levin was a corpse, a Mrs. Christopher came to rent one of the houses belonging to the testator, but he did not want to rent it to a widow, but Mrs. Riley, one of the plaintiffs, knew her and vouched for her, and he let her have the house. Mrs. Christopher paid the testator five dollars on account of the rent in advance and agreed to pay thereafter the rent, weekly, for that month, and after that a month’s rent in advance. Mr. Howell put the bill in his pocket, and later, on the same day, when Buxton wanted some money to pay for digging Levin’s grave, he had forgotten where he got the money; he was much distressed over Levin’s death. After Levin’s funeral, in expectation of Stephen Howell coming from Montana, Mr. Howell had the house cleaned and papered, this paper the old gentleman, showed to Mrs. Riley in the summer of 1901. Stephen Howell, Levin Howell’s brother, came to St. Joseph in June, 1901; he had not seen him for over twenty years, found him very forgetful and physically weak. He slept in the same room with his uncle at first, but as it began to get hotter he slept out on the porch. The old man was in' a very restless condition, and during the night would imagine persons were there who were not there, and sometimes these imaginings took place in the daytime. While Stephen was there the question of administration of Levin’s estate came up, and the old gentleman wanted William Bartlett to administer on it. After Le-
At the conclusion of the evidence by the contestants, the proponents of the will introduced no other testimony but prayed the court to give the following instructions, which were given:
“1. The court instructs the jury that there is no substantial evidence in this case that John B. Howell was not of sound mind at the time of the execution of the instrument propounded as his will dated September 21, 1901, and as to that issue they are bound to find in favor of the will.
“2. The jury are further instructed that there is no substantial evidence in this case showing or tending to show that the instrument here propounded as the last will and testament of John B. Howell, deceased, dated*695 September 21, 1901, was obtained by undue influence exerted over the said John B. Howell, and as to that issue they are bound to find in favor of the will.
“3. Under the pleadings and evidence in this case the jury are bound to find that the paper here propounded and offered as the last will and testament of John B. Howell, dated September 21, 1901, was and is his last will and testament, and they will make their verdict in the following form: ‘We, the jury, find that the instrument here propounded, dated September 21, 1901, is the last will and testament of John B. Howell, deceased.’ ”
To the action of the court in giving these instructions, the plaintiffs at the time duly excepted, and afterwards and within four days, filed motion for new trial, which was heard and overruled and exceptions saved thereto, ánd an appeal is prayed and granted to this court.
I. The controlling points on this appeal are whether there was substantial evidence as to the incapacity of John B. Howell to make a last will and testament to require that issue to be submitted to the jury, and whether there was sufficient evidence of a fiduciary relation between John B. Howell and Herschel Bartlett to require the said Bartlett to overcome the presumption that said will was obtained by the exercise of undue influence in the circumstances of the case.
The rule of practice is well settled in this State, that a will contest is an action at law, and this court will not reverse the judgment because the jury found against the weight of the evidence, but that this court will examine the record to see if there is any testimony to support the finding, and where there is no evidence whereon to base the verdict, the judgment will be reversed. [State ex rel. v. Guinotte, 156 Mo. l. c. 520, 521; McFadin v. Catron, 138 Mo. 227.]
Proceeding, then, to an investigation as to the. quantum of evidence adduced by the plaintiffs to show
[Farmer v. Farmer, 129 Mo. 534; Brinkman v. Rueggesick, 71 Mo. 553.]
And it has been often said that a man may be capable of making a will and yet incapable of making a contract or managing an estate. [Hamon v. Hamon, 180 Mo. 685.]
Accepting this as a proper rule for our guidance in the examination of the evidence in this record, we find the facts to be that John B. Howell, at the time of the execution of the will in contest, was a man eighty-five years of age, and very feeble from old age and disease. In his younger manhood, he was a man of vigorous constitution and mentally strong and had a most successful business career, and by his own efforts largely had amassed a fortune of over thirty thousand dollars; he had been scrupulously neat, tidy and cleanly in his dress and person, and had been a liberal provider for his household, affectionate and kind to his relatives, the plaintiffs in this case, who were the children of his half-brothers. Between him and his relatives there had existed the best of feeling and no cause of estrangement or dissatisfaction between them and him appears afterward in the evidence. These nephews and nieces appeared to have all been respectable, industrious and reputable citizens; he visited them and they frequently visited him and were entertained by him. The evidence tends to show that about fifteen years before his death, or when about seventy years of age, the testator began to fail both physically and men
II. Addressing ourselves now to the charge that the will in contest was the result of undue influence over the testator by Herschel Bartlett, agent and trustee
It is well-settled law in this State that undue influence need not be shown by direct proof, but may be inferred from facts and circumstances. [1 Woerner,
In Gay v. Gillilan, 92 Mo. l. c. 263, it is said: “While it is true that undue influence will not be presumed, yet, when such facts are proved as will authorize a jury to find the existence of undue influence, then the burden shifts, and it then devolves upon the party charged to exonerate himself from such charge, in like manner as in the case of fiduciary or confidential relations.” [Maddox v. Maddox, 114 Mo. 35.]
With these principles established and taking into view the extreme old age of John B. Howell, the testator, his, extreme debility from old age and illness, the mental condition testified to by various witnesses for the plaintiffs, the trust relation existing between him and the executor Herschel Bartlett, the great confidence which he was shown to have reposed in the Bartlett firm, the fact that out of an estate of thirty thousand dollars he gave his own relatives with whom he had been on terms of affection, only twenty-five hundred dollars; that he entirely omitted from the list of his
The case of Barkley v. Cemetery Association, 153 Mo. 300, does not conflict with the conclusion we have reached on this point. In that case we held that the proof did not show a confidential relationship, but we said: “We recogmze the well-settled rule which indulges the presumption that undue influence has - been used, where close, confidential or fiduciary relationships exist. This rule has for its basis some pecuniary benefit to be derived by the charity represented by the person by whose influence the testator is influenced to make the will.” In tMs case, we think the .evidence sufficient to authorize the jury to find that a confidential or fiduciary relation existed between the testator and Herschel Bartlett, and that the peculiar language of the will made the legacy as, available to the Hoagland Endowment Fund, of which Herschel Bartlett was a trustee, as if it had been given in express terms directly to said fund.
As to the suggestion that no officer of the Ladies’ Union Benevolent Association exerted any undue influ
Without further elaboration on this point it must suffice to say that the circuit court erred in giving the second instruction in behalf of the defendant, and should have submitted the question of undue influence to the jury under proper instructions.
III. The remaining question is whether the husbands of Mrs. Rebecca Roberts, Mrs. Sage and Mrs. Riley were competent witnesses. As this cause must be tried again it is proper that their admissibility should be determined at this time. On the part of the defendants it is insisted that these husbands of the nieces of John B. Howell, the testator, were incompetent to testify, because they had no material interest in the estate of John B. Howell, and that they were unnecessary parties to the suit and were made so over the objection of the defendants.
This contention is based upon the decision of this
For the reasons assigned the judgment of the circuit court must be and is reversed, and the cause remanded to the circuit court of Buchanan county to be tried in accordance with the views herein expressed.