| Mo. | Feb 26, 1908
Bridget, a married daughter of Mary McLaughlin, as contestant, brought her statutory action against contestees, her sisters and the husbands of those married, to contest her mother’s will — her said sisters being the beneficiaries. At the trial a peremptory instruction was given for contestees, requiring the jury to find the paper writing in question was the last will and testament of Mary McLaughlin. From an order setting aside the verdict, defendants appeal.
The issue on the pleadings is outlined by plaintiff’s counsel as follows: “The pleadings in the case are brief and concisé and raise but one issue. That is, whether or not the will offered for'probate was executed by deceased at a time when she was so under the influence of certain defendants and was so intimidated by them that the will was not in fact the will of deceased.”
In view of the small compass so fetched on the issues in the pleadings, it will be useful to keep in mind from end to end of the case that certain issues quite common to will contests are absent here, and, therefore, those principles of law applicable to such absent issues are not to be indiscriminately applied in the determination of the case at bar. For instance: (1) There was no issue on testatrix’s testamentary capacity. - The case proceeded below on the theory she had a sound mind and disposing memory at the date of the will. (2) Neither was there any issue tendered of conspiracy between contestees to concoct the will or that it was a product of such privity of design or conspiracy. (3) Neither was there any issue tendered to the effect that the beneficiaries under the will, or any of them, held such fiduciary relation to testatrix as would presum
At the trial contestees introduced the attesting witnesses, made due proof of formal execution, introduced evidence tending to show testatrix was of sound and disposing mind and memory and, having thus made a prima-facie case, rested. Thereupon plaintiff offered her evidence, and at the close of her case the peremptory instruction was given.
The new trial was put below upon the grounds, first, that there was substantial evidence put in tending to show undue influence; and, second, that there was error in excluding certain testimony offered by plaintiff.
The will in question bears date of February 23, 1903, and testatrix died the following November. In the summer or early fall of 1902, a witness for plaintiff, one Reuter, had a conversation with testatrix and was allowed to detail it to the jury. On the morning following the evening of that conversation, Reuter held another with Mrs. Bentzen, one of the contestees, and in that connection a certain offer was made, not only of what Mrs. Bentzen said to Reuter, but of what her husband, Otto, said to him. That offer was as follows:
“We offer to show by the witness George Reuter that on the morning following the evening on-which he had the conversation with Mary McLaughlin, deceased, on the bench in the yard of the Kossuth avenue residence of Otto Bentzen, Mamie Bentzen, one of the defendants in this cause, asked the witness what he was talking to her mother about, and when he replied that she was talking to him about her will she replied in substance, ‘I know that she was talking to you about her intention to leave Beazie (meaning the plaintiff, Mrs. Teckenbrock) an equal share, but while I live that*538 ---shall not receive one cent of my mother’s property if I can help it. ’
“Also, further, that Otto Bentzen, upon the same occasion, stated to witness that deceased was no lady, because she would not do what he wanted her to do, meaning to make a will in accordance with his wishes. ’ ’
On objection of defendant’s counsel, the court refused the offer, and in granting a new trial laid stress on its excluding so much of the offer as related to the statements of Mrs. Bentzen.
Appellants’ counsel contend the court did not err in excluding that evidence, and contend that the court did right in taking the case from the jury; because, they say, there was no substantial evidence tending to show undue influence. Contra, respondent’s counsel outlines his contentions as follows: “We are here contending, first, that the trial court committed reversible error in excluding certain evidence when offered by the contestant, and hence the learned trial judge was right in reversing himself and granting a new trial, and, second, that even on the evidence as it was allowed to go in, the question'of undue influence should have been submitted to the jury.”
Attending to questions made on appeal, other material facts will appear in the opinion.
I. The first point of respondent’s counsel is that: “Any contest of a will raises an issue of fact and should be submitted to a jury.”
Counsel does not say in so many words that a will contest differs from other law cases, in that a court has no prerogative to direct a verdict; but if by use of the broad language of his proposition he suggests such idea, he is in error. That will contests are peculiar in certain features, is true. They are held to be a solemn form of probating wills under our statute. It has been said, speaking by analogy, that such contests are in the .nature of appeals from the interlocutory
The rule in this jurisdiction being as indicated, the court on the one hand or the jury on the other has no less and no greater prerogative in a will contest than in any other suit at law; and, therefore, the rule is that
II. Did the court err in refusing the offer made of evidence from Reuter? We think not, because:
(a) Mary McLaughlin had five children — the plaintiff, Bridget Teckenbrock; a son, Michael, who died before his mother, intestate and without leaving auy descendants; the defendant, Anna, an unmarried daughter; a married daughter, Catherine Schroeter, intermarried with Bruno Schroeter; and Mary Bent-zen, intermarried with Otto Bentzen — all of them co-defendants with Anna. Mrs. McLaughlin died seized and possessed of property of a value not definitely fixed but amounting- to several thousand dollars. To Bridget she left one dollar. To the single daughter, Anna, she bequeathed all her household effects including- “goods and chattels, wearing apparel, bric-a-brac and jewelry.” The residue of her estate, real and personal, she -devised and bequeathed to Catherine', Mary and Anna in equal shares and unto their heirs and assigns forever.
Otto Bentzen did not share as devisee or legatee under the will. Therefore, it is not apparent why, on any view, his statement was admissible in evidence. As pointed out, the court laid no stress on this portion of the offer and we do not understand that plaintiff’s learned counsel now insists it was error to exclude what Reuter would say Otto said to the effect, “that deceased was no lady, because she did not do what he
(b) Recurring to the remainder of the offer, it raises this question: Where there is no charge or proof of a conspiracy between Anna, Mary and Catherine to concoct a will disinheriting Bridget, is it competent to prove the admission of Mary made prior to the execution of the will not in the hearing of the others, or of the testatrix, to the effect that: “I know that she (deceased) was talking to you (Reuter) about her intention to leave Beazie (meaning Bridget) an equal share, but while I live that — shall not receive one cent of my mother’s property if I can help it?” And in answering that question it is important to keep in mind that the issue is: Will or no Will. If the issue was whether Mary’s devise alone should lapse then another and an essentially different thing would be here for determination.
A similar proposition was before this court in Schierbaum v. Schemme, 157 Mo. 1" court="Mo." date_filed="1900-06-12" href="https://app.midpage.ai/document/schierbaum-v-schemme-8013610?utm_source=webapp" opinion_id="8013610">157 Mo. 1, in June, 1900. There Mrs. Schierbaum was allowed to testify to a damaging admission by George Schemme, one of the legatees, and it was held error. The question was elaborately discussed on principle and authority. It was pointed out that the general rule permitting the admission of a party to a suit to be put in evidence has a main qualification in a will contest where there are other legatees and devisees vitally interested in upholding the will. It was pointed out that in will contests in Massachusetts and Pennsylvania, the exception to the general rule relating to admissions was maintained by reasoning satisfactory to this court and that such exception was sustained by the weight of decided cases.
Certainty in a rule of law is of prime importance in administering justice, and it is not apparent to us why we should unsettle the doctrine of the Schierbaum
In deciding the Schierbaum case, certain cases announcing a contrary doctrine were overruled by name. It seems, however, the heresy exploded had been imbedded in other cases escaping the eye of this court, for example: Gordon v. Burris, 141 Mo. 602" court="Mo." date_filed="1897-12-07" href="https://app.midpage.ai/document/gordon-v-burris-8012675?utm_source=webapp" opinion_id="8012675">141 Mo. 602, and Jackson v. Hardin, 83 Mo. 175" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/jackson-v-hardin-8008016?utm_source=webapp" opinion_id="8008016">83 Mo. 175. So far as the Gordon case and the Jackson case announce a conclusion contrary to the Schierbaum case, they are now overruled; and we leave the subject with these observations : A will that is shown by competent proof to be in fact the product of undue influence of one devisee or legatee, out of several, is as much void as if it was the product of the undue influence of all' of them — it is a bad will. The innocent may not take property as the result of a tainted devise or bequest merely because they were free of the vice. A gift fetched by an unchaste hand may well be held to be polluted. Sutjh is not the question here, but a deeper one arises, viz.: Had Mrs. Bentzen undue influence over her mother? —did she actually exercise such undue influence? In this case it is not shown that Mrs. Bentzen had anything to do with the execution of the will in suit. The offer stopped with her bald admission relating to her unsisterly but individual desire and feeling. As stated by appellants’ learned counsel, “The question is,
Under the doctrine of the Sehierbaum case and cases following that, the admission was not competent for that purpose and, therefore, in so far as the trial court was influenced in setting aside the verdict by the exclusion of that admission, it was error.
III. With the foregoing questions at rest, we reach the main point, viz.: Was there any substantial evidence tending to show the will to be. the product of undue influence? This question seeks other facts.
Uncovering them, it appears that in 1881 or 1882 Bridget married against the wishes of her father, Patrick, and her mother. Presently, on top of this forbidden marriage, an unhappy business quarrel sprang up between her and her husband on one side and her father and mother on the other. It found its way into court and was so inflamed that it burned in two all domestic bonds uniting Bridget to her family. Finally, in 1888, the suit culminated in a judgment in favor of Mr. Teckenbrock and against Bridget’s father and it seems this judgment was largely based on the testimony of Bridget herself. The judgment was paid and at about that time Patrick and the mother made cross-wills disinheriting her. The merits of that family lawsuit are not before us and may be left to oblivion. The justice or injustice of the wills of 1888, we may not determine. It is sufficient to say that said wills evidenced a then settled policy in her parents, and that Bridget was disinherited by them because they chose to consider the judgment obtained against the father and paid off by him represented Bridget’s fair proportion of her father’s then estate. These cross wills were drafted by Judge Rassieur, who had been counsel for the father in the litigation and was his trusted legal adviser. By Patrick’s will the estate was left to his
There is no proof worthy of the name that the will was the result of undue influence on the part of Anna or any of the other devisees brought to bear upon the mother at other times, unless the admissions of the mother to he presently considered he tahen as such proof. True, Anna may have had influence in causing the bequest in her favor in the 1892 will to be left out of the last, but it can scarcely be said to have been undue. When Mary and Catherine married and left home, Anna continued to reside with her mother. She was a stenographer, held a position as such and her wages, over and above what was necessary to clothe her, it seems went into the family chest. They kept house in a flat to themselves. We see no word of evidence tending to show that the relations between these two made Anna anything but the loving and daughterly, handmaiden of the mother. And, as pointed out, there was no charge in the petition or proof offered tending to show that either Anna, or any of testatrix’s other daughters, stood in such fiduciary relation to her as would throw upon them, or any of them, the burden of explaining the provisions of the will, or raise a presumption that it was produced by their undue influence.
The rule of law, therefore, announced in Mowry v. Norman, 204 Mo. 173" court="Mo." date_filed="1907-05-29" href="https://app.midpage.ai/document/mowry-v-norman-8016145?utm_source=webapp" opinion_id="8016145">204 Mo. 173, and cases cited, to the effect that one who is shown to have had the mastery over the mind and business'of a testator by standing in the relation of a physician, attorney, guardian, or other like relation of confidence, and who acquires an advantage in a will, labors under the burden of rebutting the presumption that undue influence was exercised in procuring that advantage, cannot be applied to the facts of this case.
It may be admitted that if these statements of the testatrix are to be taken as probative proof of the exercise of undue influence — as tending to show the will of 1903 was not the mother’s will but the will of the daughters — then there was a case to go to the jury. On the other hand, if under all the facts of this case such statements and admissions by the testatrix, standing alone, do not constitute proof of the existence of the fact of undue influence, then there was no case to go to the jury.
As a preliminary observation, we can not too often
In some cases the question has come up on statements made subsequent to the will, but this is not so in all, and it is difficult to say, on principle, that á rule on the admission of statements of a testator faces one way on subsequent statements and the other way on prior statements. The leading case in this court (Gibson v. Gibson, 24 Mo. 227" court="Mo." date_filed="1857-01-15" href="https://app.midpage.ai/document/gibson-v-gibson-7999966?utm_source=webapp" opinion_id="7999966">24 Mo. 227) was written by Judge Leonard. In that case he reviewed eases where the statements were made after the execution of the will and made “about the time” of its execution. In the exposition of the matter, he comments, as follows:
“We all know that when men who have made their wills, or are about to make them, are questioned by ex-pectants, or the friends of expectants, or when such men, without being questioned, think proper to talk upon the subject, they do not always hold themselves bound to tell the whole truth. It is said to be something like the privilege of voting by ballot — concealment is here permitted, and deception is sometimes practiced. A testator may have reasons to wish for quiet, and when disappointments are to happen, the law puts it in his power to escape from the effects of*549 them, and to avoid taking a part in the scuffles that are to ensue about dividing his property. And even men, who do not care about concealment, may often really intend to make a will in a particular way, or to alter one already made, and after declaring such intentions may change their minds. Hence it is that even those judges, who have thought the evidence admissible, have • admitted that it is entitled to very little weight. ’ ’
To sum it up, he held that such statements were admissible, “When the condition of the testator’s mind is the point of contention, or it becomes material to show the state of his affections, and they are then received as external manifestations of his mental condition, and not as evidence of the truth of the facts he states.” He recognized that when such statements are part of the transaction — the genesis of the will, the res gestae — they are admissible as verbal acts, and finally announced the views of this court to be as follows :
“The just result of the whole matter, we think, is, that these declarations, so far as they are relied upon to furnish evidence of the facts they contain, are mere hearsay, and that there is no ground, either of authority or reason, to exempt them from the rule of law excluding all such testimony. We repeat, however, what we have before remarked, that as mere verbal facts, external manifestations of what is passing within, they are always evidence of the testator’s intellect and affections for the time being, provided they are of such a character, either by themselves or in conjunction with other evidence, and are so connected with the making of the will in point of time, as. to furnish any reasonable ground of judgment in reference to the testator’s mental condition at that time.”
In Cawthorn v. Haynes, 24 Mo. 236" court="Mo." date_filed="1857-01-15" href="https://app.midpage.ai/document/cawthorn-v-haynes-7999967?utm_source=webapp" opinion_id="7999967">24 Mo. 236, the very next case decided, this court spoke through the same judge. In that case there was an offer to prove that the tee
The doctrine of these cases is that where there is a charge of mental incompetency to make a will statements made by testator are competent; further, that where such statements are made at the time of making the will they become part of the res gestae and admissible ; and that where there is an issue upon the state of the affections of the testator they may be admitted on that point, but they are not to be received or taken as proof of the truth of facts narrated.
If, therefore, we concede the admissions of the testatrix were to the effect stated, viz., that she was constrained by her other daughters to disinherit Bridget, and that they were exerting an undue influence upon her to that end, yet those statements are not to be taken as true for the purpose of establishing the undue’influence and defeating the will; and such is the office assigned them by plaintiff’s counsel and assigned to them by the trial judge in setting the verdict aside.
Undue influence need not he shown by direct evi
The facts of this case do not bring it within the established rules and we conclude the court erred in setting the verdict aside on the grounds announced and, allowing full force to the doctrine that there is a discretion lodged in the trial judge in granting a new trial, yet that discretion is a judicial discretion and must be reasonably exercised.
The order granting a new trial is set aside and this case is reversed and remanded with directions to the court below to reinstate the verdict and enter a judgment probating the will of Mary McLaughlin in solemn form.