84 Mo. 293 | Mo. | 1884
This is an action under section 3980 of the Revised Statutes, instituted by the nephews and nieces, the nearest surviving relatives of Julius P. Sunderland, deceased, to contest the validity of an instrument purporting to be, and admitted to probate as, Ms last will and testament. The allegations in the petition are, that at the time he executed the paper in question, he had not a disposing mind and memory, and was unduly influenced to make it. There was sufficient evidence tending to prove both allegations to sustain the verdict,
There was evidence tending to prove that Sunderland and the defendant, to whom, by the terms of the contested will, he devised and bequeathed all his property, except a gold watch, which was bequeathed to one of his nieces, had for years lived in a state of concubinage. There was no direct evidence that, at the time the will was made, the defendant was exercising over the mind of Sunderland the influence, if any, which she had acquired through her illicit connection with him. No evidence that she said anything to him, when, or before the will was made, to procure its execution, but she was present when it was made, observing closely what transpired in the sickroom, and evidently aware of the disposition the dying man was about to make of his property. And these, with other proved facts, were sufficient to sustain the verdict finding that the influence she had acquired over Sunderland was exerted, not merely existing , and was ‘ ‘ operative on the mind of the testator in the very act of making the testament.” Eckert v. Flowery, 48 Pa. St. 52.
The court, for plaintiffs, however, gave the following instruction:
“3. The court instructs the jury that undue influence, as used in these instructions, means any influence of an improper kind, which they may believe from all the facts and circumstances admitted in the evidence, so operated upon the different faculties of the deceased, Julius P. Sunderland, as to cause him to make a different disposition of his property than he would have made if free from such influence, and that it makes no difference from what source such undue influence may have pro - ceeded, if the exertion thereof upon him existed down to and at the time of the execution of the paper in question, then the jury should find said paper is not his will.”
Eckert v. Flowery, supra, and Monroe et al. v. Barclay et al., 17 Ohio St. 302, are authorities against the proposition, that the mere existence of an undue or improper influence, operating but not exercised by the person having it, upon the mind of the testator, when he makes the will, is sufficient to invalidate it. Many wills
The judgment of the court of appeals is affirmed.