delivered the opinion of the court:
This is a will contest. Mary J. Metz, living in Rush-ville, executed the purported will and died a few days thereafter. Her heirs-at-law filed this suit to set the will aside on the ground of mental incapacity, and the undue influence of George B. Steele, Charles H. Bartlett and Margaret Bishop; also on the ground the will was not attested in the presence of Miss Metz, as required by law. The cause was tried in the circuit court of Schuyler county at the September term, 1918, and a verdict of the jury rendered sustaining the will. On appeal to this court the judgment rendered on that verdict was reversed and the cause remanded. (Snyder v. Steele,
The cause came on for re-trial at the April term, 1921, of the circuit court, and a verdict was returned by the jury upholding the will. On this trial of the cause proponents offered Steele as a witness. Appellants objected to his competency, and on that question a preliminary examination of Steele was conducted by both proponents and contestants. It was shown by answers to questions of contestants’ counsel that Steele had been a beneficiary under the will to the extent of $5000 and had been named as executor and trustee under the will, and contestants thereupon objected to his competency. In rebuttal, proponents offered the order of the county court discharging him as executor and of the circuit court dismissing him as a party to the suit, and also his disclaimer of the legacy or interest under the will. His examination also showed that he had qualified as executor, and during the previous trial in the circuit court he had actively participated as a defendant both on the trial and m this court on the appeal and that the same counsel representing other legatees represented him in the case. He stated that he concluded to resign after he had read the opinion of this court on the previous review; that he did not care to rest under the charge of undue influence on his part. He stated further that his object in resigning as executor and relinquishing his rights as legatee was that the will might be sustained. He was thereupon permitted to testify, and the ruling of the court in this regard is assigned as error.
The general rule is that in order to disqualify a witness in such a case he must have a legal, certain and immediate interest in the result of the cause or in the record. (Stephens v. Hoffman,
As we have noted, Steele’s testimony was practically the only additional testimony offered over that produced at the first trial. The facts which the appellants urge as showing that he resigned as executor and relinquished his interest as legatee for the purpose of testifying were, that this was not done until after the decision of this court on former hearing on review; that during the first trial he was actively engaged in prosecuting the defense as executor and legatee; that his counsel in the case were the same as counsel for Charles H. Bartlett, the residuary legatee; that three days before his resignation as executor was filed in the county court Bartlett signed and acknowledged in St. Louis, where he resides, a petition reciting that Steele had resigned and asking that Thomas W. Sweeney be appointed administrator de bonis non with the will annexed. Appellants urge that the relationship between Steele and Bartlett and the fact that Bartlett signed an application for the appointment of Sweeney as administrator previous to Steele’s resignation indicate an understanding between them that though Steele relinquished his rights as legatee he may yet procure the same from Bartlett. Counsel for appellants, however, admit there is no direct evidence of such an agreement between them. Steele stated in his examination that he resigned and released his rights in order that the will might stand. We are unable to see in what manner his resignation and release, of themselves, affected the question whether the will would stand or fall or changed the record made on the first or second trial except by his testimony. This court found that on the issue of undue influence exercised by Steele there was no evidence overcoming the presumption of such undue influence. As to the issue of attestation in the presence of the testatrix, this court on the previous review found that the evidence did not show that the attestation complied with the statute.
As we have indicated, the only difference in the testimony in the two trials on the above points, aside from minor differences of no consequence in the testimony as to attestation, is the testimony of Steele. The only way, therefore, in which his resignation and relinquishment could save the will would be by his testifying. Could the necessary testimony have been produced from other sources there would have been no reason for his relinquishing and resigning in order to save the will. The question involved in such an issue is whether, in the words of the statute, he resigned and released his rights for the purpose of testifying. Though he may have desired to testify in order to save the rights of other legatees, such fact can make no difference as to his competency. What, may have been his motive for wanting to testify is immaterial. If he withdraws for the purpose of testifying he is disqualified though his reasons for wanting to do so are wholly unselfish. He stated on his examination as to his competency that he did not want to rest under the charge of undue influence. He went through the first trial under what he has characterized as the charge of undue influence and took an active part in the trial, qualified and acted as executor throughout, and did not resign until after the decision of this court on the former review. His release and resignation do not, of themselves, affect the charge of undue influence. So far as shown by this record, the only testimony by which the presumption of undue influence can be refuted is that of Steele himself. It may be that he is unfortunately situated in "that regard, but it is apparent from the evidence in two trials that his resignation and release would in nowise affect the record concerning undue influence except he testify. We do not hold that one cannot testify concerning a charge of undue influence against him where he has released his rights and is dismissed out of the case, where it is not shown by the evidence to have been done for the purpose of testifying. No hard and fast rule can be laid down concerning the proof necessary to show such purpose. We have reviewed the acts and statements of Steele for the purpose, of determining whether or not from all reasonable inference they constitute sufficient evidence that his resignation and release were for the purpose of testifying, and we are unable to escape the conviction that the evidence does so show.
Counsel have cited cases wherein it was held that a party releasing as legatee or devisee or resigning as executor is competent to testify. Those cases depend upon the particular facts showing that the witness had resigned or relinquished at the earliest possible moment, or other circumstances tending to show that he did not so act for the purpose of testifying. We are of the opinion that such is not the condition of this record, and that the testimony of Steele was not and cannot become competent. This leaves the record in practically the same condition it was on the former hearing in this court.
Appellees contend, however, that even though this court were to hold that the presumption of undue influence was not overcome as to the legacy of Steele, nevertheless the will should stand as to all other legacies not affected by undue influence, and their counsel urge that such holding is justified by the language of this court on the former hearing, wherein it is stated: “The devise of the life estate to Mrs. Bishop and the bequest and residuary devise to Dr. Bartlett are not subject to the presumption of undue influence, but as to the bequest to Steele the legal presumption of undue influence is in no way rebutted.” The language of the opinion does not warrant the construction sought to be placed upon it by counsel. The bill in this case charged undue influence on the part of Mrs. Bishop, Dr. Bartlett and Steele,—all beneficiaries. The opinion in the former case holds that there was no evidence showing undue influence on the part of Mrs. Bishop and Dr. Bartlett, but that by reason of the fiduciary relationship existing between Miss Metz and Steele, and the fact that he wrote the will, the presumption of undue influence existed as to him. This is not to be construed as holding that a will may be held to be part good and part bad by reason of undue influence of one of the beneficiaries. Appellees’ counsel cite cases from other jurisdictions as sustaining their view on this point. The greater weight of authority, however, is to the contrary, and in this State the rule is that where the execution of a will is shown to be the result of undue influence exercised by a beneficiary the contestants are entitled to a verdict. (Weston v. Teufel,
The decree is reversed and the cause remanded.
Reversed and remanded.