*1 397 sale, after she knew of the sheriff's considerable time waited knowledge at least failure which lack of is attributable required notice. On plaintiff statutory to serve the execution court, justice plaintiff, as. defendant in the contrary, this Young plaintiff there, nothing, or, as Young, she owed claimed that rain charge dust let the him to his account put it, “told for him,” cut the amount jury down “fixed a it,” settle steadily plaintiff ought judgment, and this which he to have be judgment pay till she was forced to same pay the refused to property which St. Louis title to certain it encumbered the cause compelled so, to do in order paid it, when She to sell. she wanted we cannot here, the facts property. Under a sale of to effect constituting of acts and much less plaintiff laches this convict 538; p. R. C. L. 533, 10 Hendrick, Mo. v. estoppel. [Olden p. J. 694; 21 C. 1156.] reversed and court therefore trial is judgment judgment plaintiff enter directions remanded cause Ferguson, GO., concur. Seddon petition. prayed as adopted by Stuegis, C., is foregoing opinion CURIAM:—The PER judges concur. All of the court. opinion Boyd. Appellants, Shapter O. v. William al., et H. (2d) 542. 37 S. W. One, 1931. March Division
L. W. Booher, appellant. Duvall & Elliott for Miles *3 Bart respondent. M. Lockwood for SEDDON, C.—This is an action under (Sec. 525, statute R. 1919) S. validity contest the -of will a spinster, who died a resident of Buchanan County, Missouri, on 18, October 1926, age at the seventy years. in controversy was ad- probate
mitted to in the Probate Court of Buchanan County on 20, 1926, October and the instant statutory action was commenced in the Circuit Court of Buchanan County on December 1926. The validity of the will grounds contested alleged testa- *4 mentary incapacity of testatrix, and undue influence, alleged to have been exercised over the of by testatrix the sole beneficiary under will, who is the defendant, Boyd. William O. The will was published executed and by September 18, 1920, some years prior six to the date of her death. The testatrix, by will, the said after directing payment of all just debts, funeral expenses, expense and the of the erection of a suitable monument grave over the of testatrix, gave, devised and bequeathed to her brother, William O. all of her property, Bpyd, both real per- sonal, every of character, kind and and wherever situate, with the provision in case prior of his decease, his heirs shall succeed interest in testatrix’s'estate. The will nominated said Wil- liam Boyd O. as the thereof, executor and he was duly appointed by executor order of the Probate Court of Buchanan County. contesting The plaintiffs, Shapter William H. and Lenver Shapter, nephews are testatrix, of being the predeceased of sons sister of testatrix. contesting The other plaintiffs, William Lamar, Orville Lamar, Perris C. respectively, Lamar are the widower, and the
Cfc sons, Lamar, of Sarah sister testatrix, two a deceased of who survived died commencement, but who after the trial, and before the of instant action. persons The three last named were substituted parties plaintiff place in the Lamar, and stead of Sarah deceased, original plaintiff. party who was an petition form, is in by
The conventional proper averments presents testamentary of capacity, the issues and of undue influence. general specific
The answer of the defendant is a denial of the petition. reply by A plaintiffs, denying was filed generally the of the answer. averments
The jury, action was tried to a and the trial court submitted to testmentary incapacity issues jury the of testratrix, and part jurors of undue influence of defendant. Nine of the sustaining validity verdict, returned a and the trial judgment court entered a accordance the verdict. After unavailing trial, plaintiffs motion for new were allowed an appeal to this court. property
The testatrix’s and estate consists of 51 acres farm County, land in Buchanan certain household effects, furniture and deposit banks, promissory cash on three several notes, and certain Drainage District, of the Nishnabotna Pickering bonds Lumber Argentine Company, Exchange. National appraised The approximately $27,000. value estate is of testatrix’s voluminous, The record herein and includes the substance fifty of more witnesses. great than The volume of stating opinion in this testimony prevents our more than a condensed summary scope substance, and trend evidence. shows that the father of
The evidence Boyd, Jarrett pioneer County, of Buchanan during settler his lifetime acquired farm lands the south county, considerable of said imposing he built a rather residence. Boyd Jarrett year age years, leaving intestate died $60,000 consisting of about in live stock an estate per- other farm property, sonal acres of land. predeceased His wife years. by him He was survived two sons, several Ben Boyd, and herein; Boyd, O. the defendant daughters, three Sarah Boyd, testatrix; Lamar, and Belle grand- two Shapter sons, Shapter, William H. and Lenver contesting two of the herein, are sons of Ann plaintiffs Shapter, predeceased who Boyd. property daughter of Jarrett estate Jarrett among and distributed partitioned aforementioned heirs *5 Boyd. descendants of Jarrett and lineal Shapter William Lenver of died
The mother when and- the latter they children, and were taken into young were home of their Boyd, where were until they Jarrett reared grandfather, reached Shapter William and Lenver manhood, when both were and married, themselves, long prior for they established removed homes Boyd. Likewise, the grandfather. Jarrett of their death year 1885, Lamar in the and some daughter "William Sarah married County, farm in Andrew to a with her husband time removed later after com- death, which occurred until her where resided sons, two Lamar instant suit. Her Orville and mencement Lamar, surviving husband, William Lamar, and her Ferris C. in instant suit. plaintiff place parties in her as substituted children, Boyd, his four unmarried of the death Jarrett After in Boyd, continued to reside Belle, O. Jane, Ben, and William housekeeping, family attended Jane and Belle domicile. Several after land. the death farmed the Ben and William married and removed with his Boyd William 0. wife father, of his estate, from his father’s had received the land he portion of to a himself, still for and where he resided at a home he built where His sisters, of unmarried this action. commencement the time of the brother, Ben, continued his unmarried Belle, and reside Jane year Boyd Ben died intestate family domicile. in the old Boyd agree William with attempt was 1911. An made Boyd upon an of Ben amicable distribution heirs other collateral attempted failing agreement, estate, in which William 0. of Ben’s estate, partition Ben’s brought the lands and Boyd a suit among divided his collateral Boyd were heirs. of Ben personalty death, Shapter Ben’s after William H. year, shortly In same of County Probate Court Buchanan an information filed Boyd, person aunt, Jane was a of unsound his mind charging that affairs, managing resulting inquiry in an incapable of and was Boyd jury, mind of Jane before who of re- as the soundness Boyd finding person Jane was a un- of turned a verdict managing affairs, incapable of the Probate sound judgment County entered Buchanan accordance Court jury, appointing an order and entered William 0. the verdict Boyd. person appears and estate Jane It guardian of the Boyd as disap- that Belle resented and from the evidence Shapter instituting inquiry H. of William action proved of the year Boyd sister, In the sanity Jane. of her died" as to the Boyd 0. guardianship, and William under there- intestate, while guardian- final Court his settlement of the Probate upon filed prayed certain .estate, in which for allowances for ship of Jane’s estate, prayed and also guardian Jane’s as services Boyd for her services in the to Belle care allowances certain Lamar, sister, sister, employed Jane. The Sarah nursing guard- approval final settlement oppose attorneys to prayed to resist the allowances estate, Jane’s ianship Boyd. hearing At probate 0. William Shapter Lenver Shapter appeared H. wit- court,
'CO Boyd and his claimed William 0. against the allowances nesses Shapter Lamar and the Boyd. The action of Sarah sister, Belle William by Belle opposing the allowances claimed brothers in ill-feeling upon Boyd resulted in resentment 0. nephews, the sister, Lamar, her Boyd her Sarah toward
Belle Boyd, There is that Belle Shapter brothers. hearing upon set- following stated, on several occasions estate, intended Boyd’s Jane that she guardianship tlement Lamar, sister, “fix Sarah her affairs” so that her make will and receive noth- Shapter, nephews, William and Lenver would and her H. Boyd’s death, ing Immediately William her. after Jane from There brought partition land estate. Shapter a suit to Jane’s never vis- Shapter Lamar and the that Sarah brothers evidence Boyd although sister, Jane, after death of her Belle ited distant, Lamar resided Shapter not far and Sarah brothers resided county. Shapter reason nearby Lenver testified that he aunt, Boyd, uncle, was that William had not visited his Belle his shortly Boyd, him, Boyd’s 0. on occasion after Ben had stated an (William death, prior Boyd, to the death of Jane that “he 0.- (Sarah) Sally Lamar Boyd) that he didn’t want had told Aunt there; said, ‘I tell her didn’t there, and he made Belle want her you Henry (Wil- go I’ll I don’t want further than (mean- look after those Shapter) there; H. I have to two women liam going ing Boyd) you and I’m to have fellows and Belle Jane ” Shapter Lenver said he communicated fooling there.’ around brother, of William O. William alleged Boyd statement positively having denied made Shapter. The defendant H.
such statement. uncle, Boyd, William Shapter that his 0.
William H. just him, prior to the settlement and distribution of the had told (meaning Boyd, that “if Sarah and' Jarrett Lamar estate of around, kept monkeying doing nothing, Shapter) Lenver (William Boyd) Ben would have Uncle and Aunt Jane and 0. Boyd); (William him 0. their stuff over to if Aunt Belle make quit Sally Aunt didn’t be careful of themselves and Lenver (meaning going Ben, them contrary, he was acting Belle) will, I it to him—make a believe—turn the make over having emphatically denied The defendant made over.” property Shapter. William any such statement written at testatrix’s direction will of attorney Lockwood, Corby- whose officewas located
Bart M. city Joseph, morning building Sep- of St. F'orsee testified that he 18, 1920. Mr. Lockwood had known tember prior preparation ten fifteen to the for some represented attorney testatrix as her previously and had represented matters. He testified he had also or three in two M Bespecting 0. matters. several Lockwood will, Mr. testified: “She preparation of testatrix’s my office, is I (testatrix) came recollection took into me.
my office; she wanted to consult We went in private said she *7 me, her business to that she wanted me to there and she disclosed for I how prepare her will for her. Then some little time discussed for drawn, probably and talked with her half will was to be making of the matters hour, an memorandum she wanted incor- property disposed of; will how she wanted her porated in the typewriter myself. will on the She said how she then I wrote dispose property. disposition of her I asked her what wanted to give it. to all Bill— to make of She said she wanted it she wanted Boyd, William 0. here. She asked me if that is she (Sarah) Shapters and Mrs. Lamar in had to mention the the will— good legal good if will—if it would be if it would be a she didn’t good; would I advised her it be not mention them. she did they because were not her to mention them children. Then have mention them say if she didn’t have to she didn’t want she said will. anything them She said she didn’t give about want to I her how she property. them, asked felt toward any them and she unfriendly they her; they were toward told me that had years, frankly said, in a number of and she visited her as far as concerned, that she didn’t want them that was to come to visit H.) Henry (William Shapter had pro- her. She said that started a sister, had ceeding against Jane, put them litigation into estate, unfriendly, they Ben’s and she over didn’t want any property, why of her and that making them to have she was sister, Lamar, Sarah will. She said that her had lied about her hearing probate stand at the on the witness court. In the hearing probate Boyd court in the estate matter, rep- I Boyd William 0. objections resented Belle because had of both of been filed to the allowance their claims. . . . She following time, hearing at that probate remarked court angry was rather over Jane’s estate —Belle at what had been said Shapters on Lamar and the Mrs. witness stand—'and she re- hoped get time that she wouldn’t marked at that any of her something to that effect. property, ... As to whether or way decided about the very not she had she wanted to dis- views pose property day, when she came in she very clearly had very clearly, mind, and described to me what she wanted do. me wanted to make will She told she this because she wanted Bill it, or if (defendant) he died to have before she did she wanted didn’t it, Shapters have children to want and Mrs. Lamar just it; strong it and she made as to have as she could me, property had, what she and she described told what property estate, gave from the they received me her reasons why acquaintance my From any of it. them to didn’t she want say time healthy knowledge her, I would my her and mind; normal, of sound will, she was of this the execution woman.” Mrs. Lockwood, M. Bart was witnessed will of Belle The state a former James, attorney R. Hudson, Ernest Flora testi- Lockwood. of Mr. an office associate senator, who was prima- made subscribing will witnesses three mony of the issue of testatrix’s proponent case facie testifying subscribing witnesses all of the capacity, testamentary age and of sound twenty-one more than testa- will, and that signed published at the time their names of them to subscribe requested each personally trix presence in testatrix’s will, which was done witnesses each other. presence of Hudson, Flora will, Mrs. subscribing witnesses One of the *8 an intimate long been many years, had and known testatrix for had dis- residing short upon a farm a testatrix, neighbor and friend the that, on Hudson testified Mrs. home. from testatrix’s tance morning ac- requested her testatrix executed, the will was the witnessing tes- purpose for the company Joseph to St. testatrix go wanted me to (testatrix) she said will; that “Belle tatrix’s brother, she over property to make her—she wanted defend- Joseph with St. along;” they go that came me to wanted automobile; that, upon son, defendant’s ant, wife, in his his son, his left wife, and Joseph, defendant, his arriving in St. Corby-Forsee build- in “downstairs the witness testatrix ing;” elevator, to alone, witness went that testatrix and upper floor of an office, situated which was Mr. Lockwood’s office, the they Mr. Lockwood’s building; were at that while town;” after in family “were out and his morn- later will, all met execution preparation and several to their they returned station, ing a from whence parking at tois testimony of defendant automobile. The homes defendant’s that testatrix testified effect, except that defendant same son, parking wife, and his his Mrs. Hudson left did not accom- wife, son, defendant, his station, and that Mr. building in which the office Mrs. Hudson pany his office. Lockwood had execution months before that, several
The defendant sister’s write his if Mr. Lockwood he would will, had asked before, Belle Lockwood, several months Mr. “I told will: if why him I to ask came will—that is to write a said she wanted one; I I think went she wanted one; I told him write he would just her; remember for don’t write one I would him if he asked exactly.” what conversation was proponent prima-facie a case
After had made con- subscribing testimony the three witnesses to the including plaintiffs, proffered lay witnesses, testants seventeen Lamar. William H. and Orville Shapter, and Lenver William that the The substance of their to the effect was child; country a Belle when Boyd, had district or school attended the apt not as a education; that she that she was received no further very pupil “was age; as other children of that her “not average mind;” sound,” she was and “was below the “was bright;” that she very person;” that she was a “weak-minded I call “what would feeble-minded;” considered rather that she had child;” that undeveloped mind;” of a had “the mind that she much;” very quiet life; she led “visit a she did not about “stayed poli- close;” took no interest pretty at home that she tics, elections; interest- not seem to be and never voted at that she did figure or “couldn’t happenings; or that she ed current events good.” Much money, kind, anything count do to do or acquaintances of of such casual testimony came from mere thirty-five forty years who had not seen talked with testatrix for H. prior contestant, to' of the will. The execution Shapter, Boyd a child ten or testified: “Belle had the mind of mind and no intelligent twelve old. She was about stronger thought was weak- of mind I Jane than Jane was. mind, minded and feeble a and that and had child’s guardian I placed her, reason and the other reason over Belle, guardian over keep making put her from I didn’t will. time, 'sick, was stout and at that aunt strong after her own house- hearty. health, She was and looked average. housekeeper; good hold about the duties. fair She was a *9 very kept moderately clean neat She done well. She her house money I of. all the time. did not that know She waste Boyd . . . The acts Belle did which indicated that she had get general a child were that she would not interested anything public, presidential affairs of the a or that like election way. anything else, It un- was no more to her what was than usual with most . . women. . whole actions more Her undeveloped-minded person, like, an An older it person. seemed grown act not up people. would more She was interested like politics, stayed run. not interested in how the school was She among neighbors No-, home; never visited much. I around don’t not claim that she insane. fact she was inter- was that unsound school, ested in the was of mind. did indicate mind; just undeveloped no, sir; I don’t think an she was unsound mind, Contestant, Shapter, a testified: the mind of child.” Lenver “I a put Boyd had mind of child. was would it that Belle She large a always woman; strong, built, pretty strong very well during a bealtby, be and did very of ber life to appeared most always busy, place, most tbe and was great of work around deal chores; cow; bouse; ber own milked of ber did and took care went done their and Aunt Jane ahead and Her raised chickens. they went and did Yes, knew to do and ahead what
housework. anything doing foolish or I ever noticed Belle it. to whether As you foolish, call but I know what would life, in her don’t childish “At contestants’ witnesses testified: I One of never noticed.” way. Boyd wanted her She could be showed she times Belle own. way
very her own there seem positive. If she wanted to have didn’t strong-minded about anybody stop her. was be who could She things.” some testimony day
The contestants offered some effect prior Boyd, to the death of Jarrett the father or two Boyd, defendant, William O. bedside and said he called the “Will, you got go; I will have to look after to his son: have they Ben, Belle, look after themselves.” One for can’t (tes- day “On of contestants’ witnesses testified: 0. tatrix) buried, time, about died, father, to me that about the time the.father stated Belle, him to look after Ben and Jane and bad asked or directed they had, anybody get words that effect. and not let what (defendant) he had to do what the old man had asked He said tried nobody do, Ben, Belle, him after Jane and didn’t beat see had; they plenty they said if would take them out of what care of it.” follows, respecting
Defendant father’s direction: time, “I my during was at father’s bedside his last illness all the my I As father called unless was field at work. to whether you suggested, go; me to his bedside and ‘I-will have to Jane, themselves,’ Belle; they to look out Ben for can’t care two; say said, ‘You he did not that. He called us a time or (meaning Jane, Ben, Belle, Boyd) stay four and William here always farm, keep you the old I will' you, what leave have a living for each other.’ That is what he said.” rebuttal, proponent proffered thirty-five lay witnesses,
In many intimately acquainted whom had been with testatrix dur- ing of her the most lifetime. The of their substance strong woman; testatrix had been and healthy always average mentality; she had and normal mind and that she was mentality, easily influenced; neither-childish in nor was she that she managed and attended to her own affairs; household and business *10 “possessed good “just sense;” that she was common that she had good anybody;” usually about as that as she “had her own way matters;” “always good that mind, about she seemed have a own;” per- one “was be woman to easy her not that she anything;” nothing into
suaded that “there was foolish, childish, conversation;” or feeble-minded about her talk and that she “was strong-minded;” quiet woman, rather “she was a interested in business;” although her own “she had had much not educa- tion, concerned, far common as sense was she had as much as anybody;” very positive “she was in her ways, manner easily influenced; if she made up her mind to ado thing, it;” strictly business;” she did that “she attended to her own that she to her duties, attended household and the cultivation of a garden; kept she cow, eggs, raised chickens and and sold the chickens, butter, produce farm; and other small from that she drove frequently buggy a horse from her farm to neigh- boring Dearborn, town of city Joseph; and to the of St. that she often with neighbors visited intimate friends and and showed an in- community; terest the affairs of her that she-“seemed to all like ’’ neighborhood; the other women of her good, memory and she often related incidents youth, that occurred in her and “had difficulty no remembering things about happened years that had be- ’’; fore neighbors had told some of her intimate friends and that she intended to make a will and leave all her property to her brother, Boyd; and that “she said that her brother had been good her, and that give property she intended to him her at her ’’ death. We have searched the any record herein in vain substantial evidence, direct or circumstantial, that defendant exerted undue influence over the mind of at, before, either time of the execution of the being will. Such the status of rec- ord, the contestants of position relying the will are forced to upon a presumption influence, undue presumption, con- assert, testants arises out of what claim be substantial'evi- dence a confidential fiduciary existing relation between tes- tartix prior to, and at the of, making time execution of the and which confidential fiduciary relation, the contestants' contend, is established and admis- sions of respect defendant. With matter, to such the evidence shows that, after the death of the testatrix lived alone family in the old domicile until death. The defendant had re- sided his own farm, with his family, long prior wife and the death of his Jane, sister and at no time marriage after the defendant and his removal own, home of his had he resided in home, the same or under roof, the same with the testatrix. Until eight some or ten death, before her owned a horse buggy, and, with such means of transportation, unaided by defendant, she attended to her own marketing, drove neigh- boring towns purchased groceries such and other household provisions as she required, brought butter, eggs, chickens, *11 garden produce articles of upon snob other she raised and town, into where she either sold them for place home cash to local groceries them for storekeepers, bartered and provi- or household eight life, however, ten of her last or testatrix sions. The transportation, driving any means of horse without she had consequence having died, of which horse, owned as a she had no transportation by of automobile, other means which to travel garden poultry products town. sold the She then she peddlers, who called raised to hucksters and at home. The greater by rented out crop tenants, of her land was testatrix sharing proceeds arising the tenants and testatrix from the sale products by wheat, corn, of other farm such as was raised ten- marketing upon ants testatrix’s land. The of such prod- farm by tenants, ucts was attended to the testatrix’s who would usually of bring proceeds, either to testatrix her share the cash or would purchase proceeds, with her of provi- for share such would direct groceries buy sions and as testatrix the tenants to -for money her. testatrix had received a considerable of amount estate, of her as her in the distribution deceased father’s which share personal money deposited name, account, and to her she had time, deposit in a bank Dearborn. From time to as the bank amount, one of testatrix increased the officers of said bank would through brother, inform medium of her (usually testatrix Wil- liam) might security of loans that she make of farm mort- approved of gages, making loan, such and whenever testatrix upon her for would write a check bank account the amount of the loan, behalf, bank would make the loan and the on her officer preparation proper and would attend execution of the promissory evidencing such loan, recording *12 her behalf. pay quested defendant by made to loans respect usually him with had consulted testatrix herself, testatrix, account, but moneys her bank in her out of loans, and the would make she or not whether always determined death, testa- time of her At security thereof. passed upon St. Bank of Tootle-Lacy National savings in account a trix had account, amount- savings another $1500, and amounting to Joseph, Whether Joseph. of St. Bank American National ing $4700, in the making of after, or before, opened savings were accounts such The defend- by evidence. clearly disclosed is not testatrix’s any with personal account either had had never testified he ant with either done business banks, had never Joseph St. of the him with probably had consulted testatrix He testified that bank. depositories of banks, as the Joseph St. of the as to the selection herself, checks drew the savings, but accumulated bank, which in Dearborn checking account upon her current deposited in the by Joseph defendant to St. taken checks were in St. maintained which testatrix savings accounts
respective purchased had some times, the testatrix At various Joseph banks. government of her bonds out Belgian States, Canadian and United testatrix had con- testified savings. Defendant accumulated he, turn, in investments, and respecting bond such with him sulted Joseph respect- in St. brokers bond bankers and had consulted with their tes- had communicated advice investments, ing such making of in selection and judgment her own tatrix, who used bonds, accruing on such The investments. interest such by and maturity, usually collected bonds, upon principal of the per- by banks to testatrix’s banks, and was credited through the death, one testatrix owned At account. the time bank sonal Drainage District, $1,000 one bond Nishnabotna $1,000 bond of $1,000 Company, and two bonds Pickering Lumber earned interest at Exchange, which bonds Argentine National According semi-annually. annum, payable per per cent of six rate by bonds were selected testimony, last mentioned defendant’s sent to which had been a list securities of available from testatrix Defendant Joseph. St. testified bond broker broker, also with a banker had the bond he consulted safety bond in- respecting such Joseph, the soundness St. The their advice to testatrix. vestments, had communicated safe-keeping de- deposited safe mentioned bonds last Joseph. Bank in Defend- National St. Tootle-Lacy- box in the posit
4Ü ant safe-deposit testified that box himself was used jointly testatrix, or, expressed did it, as he “in but he partnership,” not remember whose or safe-deposit name had been names the box evidence, rented from the proffer any’ bank. Contestants did not or bank, showing records of the safe- whose or names the name deposit box was or rented, persons what The had access to the box. defendant possession key that he had safe- deposit box, and key that testatrix did to the box. that, eight testified further during last ten life, driving testatrix’s when testatrix had ho horse means other
of transportation, telephone and when home, she in her no he would call at testatrix’s home two or three times a week to see how getting along, perform and to requested such chores as she done; or needed to be request, he sometimes would eggs, poultry, take the butter, garden produce and other raised by town, same; and there market the and that oftentimes purchase would order or for testatrix such groceries, coal, and other provisions household requested as testatrix him to order *13 purchase for her. At the conclusion all the of in case, evidence the defendant the
(proponent) requested give the separate court to three peremptory instructions, in the nature of demurrers to the evidence. One of peremptory those designed instructions was tell jury to the that “the in evidence this case shows writing at the time paper the introduced in executed, evidence was (testatrix) Belle was of mind;” sound another designed of said instructions was to tell the jury that “there is no evidence case the that defendant exer- any cised undue influence over the deceased, of the Belle before or at paper time writing the introduced in evidence was executed;” and the third of designed said was instructions to tell- jury that “under the law and the-evidence case, your will be for verdict that paper writing in- troduced in evidence the last will was and testament of deceased, Boyd.” All of said peremptory by instructions were refused court, trial and the cause by was submitted jury court to the for determination of the issues presented tendered and by the n petition. , j_. I. Appellants (contestants) contend that there is substantial no evidence that testatrix had sufficient capacity mental make a and, the trial court erred in therefore awarding contestants upon a new trial ground of insufficiency of the evidence to support finding upon of the jury verdict the issue of testatrix’s testa
mentary capacity.
412 testamentary capacity, it respects
As tbe issue of is well settled adjudications upon court that tbe burden pro of tbis rests tbe (tbe herein), throughout ponent of tbe will the whole testamentary, capacity case, mental, show or of tbe tbe maker Shannon, 271, Major 279; v. Mo. of will. v. tbe [Goodfellow Kidd, 607, Keller, 489; 628; 458, 261 Mo. Rock v. Mo. Berke Smarr, 319 Reller, 614; 317 Mo. Smarr v. meier v. Mo. 1165.] survey A scrutinous of tbe entire evidence tbe case convinces us amply of will has proponent tbe sustained tbe burden of of proof respect testamentary capacity. to tbe issue testatrix’s prima-facie made case proponent Tbe issue by tbe tes- subscribing timony of three witnesses tbe will. No medical proffered by expert contestants, was or proponent, witness testify respecting capacity tbe mental of testatrix. Tbe con- prima-facie undertook to tbe by pro- testants overthrow ease made by proffering lay of ponent testimony seventeen witnesses. The lay of testimony mostly contestants’ witnesses consisted mere of expressions opinion, unsupported by any proof or recital of tbe opinions band, facts which such were founded. On the other proponent, testimony subscribing addition to tbe tbe three will, proffered lay tbe thirty-five witnesses of some many witnesses, of whom bad close been and intimate friends and neighbors acquaintanceship whose with testatrix, and opportunities for observation of whose mentality, testatrix’s ex- long years, period tended both making over before after the They will. that testatrix all testified was a woman of sound memory mind; good; there was nothing childish demeanor; about her conversation that she always strong woman, up to healthy very time her death. A proponents’ number considerable witnesses lay detail conversations, acts and conduct of support *14 opinions mind, of their testatrix was sound and that she was possessed capacity mental a make will. by
As was said this court the recent case of Kaechelen v. Bar (2d) 1033, 19 W. 1037: ringer, S. is “The rule well settled ordinarily, lay permitted will give before a witness be opinion mind, person that a is of unsound he must detail upon first the facts if opinion, expresses which he bases such but he opinion an person mind, required of is such is sound to detail the facts upon opinion. founds his reason which he The for the rule is ob opinion person is of unsound upon vious. An mind is based person, abnormal unnatural and conduct of acts such while opinion upon of soundness of mind is founded the absence of such acts conduct.” expressed opinions by lay witnesses, contestants’
The to the effect child,” undeveloped had “the of “an mind,” testatrix
413 person,” and that she was a “weak-minded and her mind was “be average mind,” being low unaccompanied proof substantial by upon of being the facts which opinions such predicated, were unsupported by substantial proof of abnormal acts and conduct utterly lacking persuasiveness, cogency, weight. Smarr, 319 v. opinions by Mo. l. c. expressed [Smarr 1168.] witnesses, proponent’s lay to the effect that of sound hand, possessed testamentary mind and was capacity, on the other constituted substantial upon evidence issue testatrix’s mental testamentary capacity, under the prevailing rule as stated in Barringer, Kaechelen v. supra.
Substantial testamentary evidence capacity having testatrix’s by been proponent, adduced being such evidence amply suf- ficient to the burden proof -sustain resting upon proponent, it follows that the verdict jury, upholding the validity of the will, conclusive, upon is appeal, the issue of testa- testatrix’s mentary capacity. Pollack, v. 319 744, [Moll Mo. 758; Hahn v. Hammerstein, 248, Beyer 272 Mo. 256; Hermann, 295, v. 173 Mo. 303.] IT. It by is further appellants contended ad- evidence by
duced proponent (defendant) was insufficient to rebut uresumption of undue influence defendant over
the mind of which presumption is claimed by appellants to arise from facts and circumstances evidence clearly show that a confidential fiduciary relation existed between testatrix and defendant at of, prior to, time execution of the will. It the well settled law of State, statutory this contests, will
that, ordinarily, and in the absence of substantial evidence show ing the fiduciary existence of confidential and relation between maker of will principal and a beneficiary thereof, the burden of establishing undue upon influence rests the contestants of throughout the entire trial of the contest. Smarr, v. [Smarr 1165; 1153, Norman, However, Mo. Mowry v. Mo. 189.] if of'a will the contestants show a state of facts which is sufficient to establish the existence of a fiduciary confidential and relation between a testator principal and a will, beneficiary of the then the indulges presumption law of undue influence principal beneficiary such o‘f the it devolves such beneficiary to presiimption rebut by the adduction of tending to show that no undue influence was exercised the bene ficiary testator, over credibility the mind of which rebuttal *15 exclusively jury, for and not for the court. [Mowry Norman, v. 204 Mo. 189, l. 191, c. and cases there cited.]
414
A careful part, analysis, our study exhaustive evidence, record in the instant direct case discloses no substantial or circumstantial, tending upon part to show influence undue of the Hence, defendant over the issue the mind of testatrix. of undue unless jury, influence was properly submissible to it can be held as a of the matter of law that the contestants influence, are entitled aris to the presumption benefit of a of undue ing sufficiently out of a state of facts shown evidence fiduciary substantially establishes the existence of a confidential relation between the testatrix fact and the defendant. mere appreciating lived sister, that his alone farm, small to assist her in and that had no one performance of the about her chores and household duties welfare, concerning place, home was solicitous his sister’s give needs, nd ministered to her does not rise a influence; safe inference of nor do the undue guards precautions against law the dan of the ger of rendering undue influence to a maiden foreclose a brother from elderly sister helpful such affectionate and service and minis trations as may the brother opportunity find render in timé and [Lindsay her behalf. Shaner, 297, 309; v. Mad Mo. Maddox v. dox, 114 35, Mo. influence, opportunity And however mere 48.] ample, does not afford a basis for undue influence. an inference of v. Barlow, 316 916, 944; Shaner, Mo. Lindsay [Bushman Mo. v. Nor do suspicion upon we look with circumstance 310.] wit-, brought defendant subscribing one will, nesses to her automobile, building defendant’s in St. Joseph in which lawyer was the office of will. The who drew the evidence shows that horse, automobile, testatrix at the time had no or other of conveyance, means and it an unnatural was not or sus picious requested circumstance that she should brother convey her in his automobile to St. Joseph, and to the office of the lawyer prepared who will, or that defendant undertook Joseph. take her St. It has been held this court there impropriety is no in one brother discussing with another brother provisions will, the latter making brother’s memo- randa to used be will, scrivener in the preparation although the one brother a principal beneficiary of the other [Lindsay Shaner, brother’s will. v. 291 Mo. l. c. And we 309.] see no impropriety, suspicious, circumstance, in the act of herein, conveying testatrix from her home in the coun lawyer try to the office of who drew her whose office Joseph, presumably in St. situate and was some miles distant from the testatrix’s home. .Such fact and circumstance does not raise an inference of undue influence of defendant.
415 regarding One or of two witnesses on behalf contestants to testatrix by certain statements made purported have been to any- (testatrix) that effect the defendant “wouldn’t let her not would thing to Shapter do defendant boys,” with the and that to contestants encourage any allow testatrix to of invite or of testatrix visit purported testátrix in her statements home. Such up- influence are not undue to be of viewed considered as evidence 310, 329, and Mo. Kendrick, on 321 of defendant. v. [Adams Mc- v. subect, Teckenbrock Speaking cases there that to cited.] therefore, “If, 550, 209 has said: Laughlin, 533, Mo. this court stated, effect we concede the of were admissions the testatrix daughters disinherit viz., to by that other she was constrained upon her Bridget, they influence exerting an and that were undue as true end, that not to be taken yet those statements are will.” defeating the purpose establishing of undue influence and ex establishing the by The upon evidence relied contestants as the testatrix fiduciary relation between istence a confidential and prior will, and defendant at the time of execution evidentiary facts thereto, statement of is summarized in our unneces It is opinion. preceding paragraph be found in of this say it to Suffice sary again summarize detail such evidence. wholly to establish opinion, insufficient evidence, such in our relation between fiduciary
the existence such confidential and give presump to a rise sister, defendant as to and his upon cast part, and tion of defendant’s undue influence was testatrix showing the burden of that the defendant shows evidence While the the result of defendant’s influence. undue times, respecting testatrix consulted with advised defendant affairs, and that investments and limited business right unquestionable when consulted her—as it far short falls yet evidence duty of a brother to such do— con charge or tending show, showing, or of were, or that affairs, limited as trol over testatrix’s business transactions. conduct, business and her dominated her acts deal business greater part of testatrix’s The evidence shows bank through officer of the ings transacted moneys account. Such checks personal kept deposit to her on proffered in evidence were bank account as testatrix’s not show does signature evidence of testatrix. The trial bore the investments, and similar loans, comparatively few through effectuated testatrix business transactions wholly instant case agency The evidence of the defendant. fiduciary rela of a confidential the existence failed to establish 294 Mo. Halpin, [Canty v. and defendant. tion between Graff, 457, 470; v. 276 Van Raalte Mo. Holland, v. 118, 136; Sanford Mo, v, 297, 311; v. Winn Shaner, 529; Lindsay 513, 291 299 Mo. 416 947; 460; 916, 420, Barlow, Mo. v. Mo. Bushman
Grier, 178; Mayes Banc), Mayes (Mo., Spurr, 163, v. 285 Mo. v. En Spurr strongly upon opinion rely 100, appellants 235 W. S. 106.] Norman, 204 Mowry our v. ruling Division of of this court herein is supporting Mo. their insistence that the evidence fiduciary rela sufficiently a confidential substantial to establish presumption of undue tion, and to entitle the benefit them *17 evidentiary facts, set upon the of defendant. The as influence readily opinion Mowry ease, in in disclose that forth bearing upon of confidential relation case the matter evidence stronger, character, than that relied much and of far different was upon by case. evidence the contestants in the instant The Mowry aged that an and feeble testator lived with case showed beneficiary will, who, son, principal as the as of the testator’s managed agent testator, all of his father’s sumed and controlled gave property affairs, father what food interests and business have, paid clothing for their physicians the father’s services, purchased medical and even for the the tobacco he father any used, possession the testator not in actual use of so that money. property of his jury,
It follows that the trial court should directed the requested that “there is no evidence that the defendant exercised undue influence over the mind case writing deceased, paper time the before or (will) Inasmuch introduced was executed.” as the evidence trial court submitted the learned issue undue influence to jury, jury right by returning and the reached a result a verdict sus- taining upholding unnecessary validity it is assigned or rule claim of procedural that we discuss error appellants respect giving certain instructions on be- defining meaning and application half of defendant of the term influence.” “undue judgment manifestly right, herein was and should be af- Ferguson Sturgis, GC., It
firmed. is so ordered. concur. foregoing opinion C., adopted PER CURIAM:—The by Seddon, opinion judges court. All as the concur. Plain Blind, Foster v. Missouri
Catherine Commission (2d) tiff Error. 37 S. W. 450. One, March Division 1931. notes and to the securing payment mortgage same, other documents and to whatever details were incident to the other transaction. The notes usually with such papers and other connected loans were retained payments custody of the bank. The interest on such loans by through bank, depos- ordinarily were collected and were account, ited bank and the bank would mail testatrix’s to testa- advising notice, postal trix a card her of the collection of such in- crediting payments, payments terest of such testa- Likewise, bank account. whenever bank trix’s collected the principal loan, such the bank would credit the same to tes- account, tatrix’s bank and would mail notice of the transaction Cheeks bank ordinarily testatrix. testatrix’s account were twenty-five signed by testatrix, drawn checks, some of such $5,000, covering varying $4 in amounts from period of time including year 1925, from to and bearing all the tes- signature, proffered tatrix’s in evidence on the trial. There was some proffered contestants that several of the checks 41Ó signed, “Belle account were bank upon testatrix’s not shown checks are such amounts of number Tbe Boyd.” 0. remember he could testified evidence, and the by the amounts, and small cheeks, both of such signing only two re- had authorized taxes, payment issued Defendant